
    FARRIS v. STATE.
    (No. 3214.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1914.
    Rehearing Denied Nov. 11, 1914.)
    1. Witnesses (§ 52) — Husband and Wife-Compelling Testimony.
    On a trial for keeping a disorderly house, the acts and statements of accused’s husband, proved, by the testimony of other witnesses, were not inadmissible, on the ground that to admit them permitted or compelled the husband to testify against the wife.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 124, 126-136, 165, 415, 417, 419, 424; Dec. Dig. § 52.]
    2. DISORDERLY HOUSE (§ 16) — EVIDENCE — Acts of Person Participating in Offense —“Principal.”
    On a trial for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and where men and women met for sexual intercourse, evidence that ac-cusd’s husband took men and women there to engage in unlawful cohabitation was admissible, as it tended to show that accused was keeping a bawdyhouse, especially as all parties aiding and abetting the commission of a misdemeanor are “principals,” and such acts rendered him liable as a principal offender.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.
    
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    3. Criminal Law (§ 854) — Custody and Conduct of Jury — Separation.
    Under Code Cr. Proe. 1911, art. 746, providing that in case of misdemeanor the court may, at its discretion, permit the jury to separate before the verdict, after giving them proper instructions in regard to their conduct while so separated, on a trial for keeping a disorderly bouse, it was not error to permit the jury to separate after the completion of the case, but before the return of a verdict, where the jury was properly instructed and were guilty of no improper conduct. ’
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § S54.] •
    4. Disorderly House (§ 16) — Evidence — Admissibility.
    On a trial for keeping a bawdyhouse, the testimony of a witness that while she was rooming with accused men would come there and she would go to other places and have sexual intercourse with them was admissible, as it tended to show that accused kept a house where prostitutes resided; especially where the witness further testified that she had sexual intercourse with men many times in the room rented from accused.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 21-26; Dec. Dig. § 16.]
    6. Disorderly House (§ 16) — Evidence — Admissibility.
    On a trial for keeping a bawdyhouse, evidence that the witness had sexual intercourse at other places with one of accused’s roomers for whom he would call at accused’s house was admissible; especially where there was evidence tending to show that accused knew the roomer was a prostitute.
    [Ed. Note. — Eor other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. § 16.]
    6. Disorderly House (§ 16) — Evidence — Admissibility.
    On a trial for keeping a bawdyhouse, evidence that a witness for the state had tried to get R., an inmate of accused’s house, to engage rooms with other persons for the purpose of entrapping them was properly excluded, where it was not contended that he brought her to accused’s house or sought to get her to bring other women there, as this might tend to show animosity towards R., but not towards accused.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dee. Dig. § 16.]
    7. Criminal Law (§ 1171) — Argument oe Counsel — Improper Remarks.
    Where on a trial for keeping a bawdyhouse an inmate of accused’s house laughed at a remark of accused’s counsel in his argument, the prosecuting officer’s incidental reference to the fact that she laughed at such remark was not sufficient cause for a reversal.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    Mrs. Mary Farris was convicted of keeping a disorderly house, and she appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Eor other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly or bawdyhouse, from which judgment she prosecutes this appeal.

Bessie Craft, Francis Gay, and other .witnesses for the state were permitted to testify that appellant’s husband was in the automobile business, and that he would bring men and women to the house. Appellant objected to this testimony, alleging:

“That defendant was the wife of Mr. Farris, and that the husband could not testify directly or indirectly against the wife, and that it was an attempt to admit evidence of the acts, conduct, and doings of the husband, indirectly, which could not be proven directly, and further that acts, statements, and declarations of the husband could not be used against the wife, was hearsay, inadmissible for any purpose and highly prejudicial.”

Appellant was being prosecuted, for keeping a house where prostitutes resorted and resided for the purpose of plying their vocation, and a house where men and women met by mutual appointment for the purpose of sexual intercourse, and the fact that witnesses testify that appellant’s husband brought men and women there to engage in unlawful cohabitation would be admissible testimony. The husband, of course, could not be called to give such testimony, but any person who saw the husband engaged in such acts could so testify, and it would not be the husband giving testimony against the wife either directly or indirectly. Such facts were cogent circumstances tending to prove that appellant was, in fact, keeping a bawdyhouse, and the court did not err in admitting the testimony. If the husband was thus actively engaged in aiding his wife in violation of the law, his acts and conduct in so doing could be proven, not by him, but by competent witnesses. This testimony went to show that the husband would get men and women in his automobile and carry them to the home kept by his wife, where they would enter the house and engage in the unlawful acts. Where the husband aids the wife in the commission of a crime, such fact can be shown. In a misdemeanor, all persons aiding and abetting the commission of an offense are principals, and may be prosecuted as such, and the acts testified as being committed by him, if true, would render him liable as a principal offender, and under such a state of facts his acts and conduct were admissible. Branch’s Grim. Law, § 681; Cook v. State, 22 Tex. App. 525, 3 S. W. 749; Cox v. State, 8 Tex. App. 390, 34 Am. Rep. 746.

The second bill of exceptions complains of the action of the court in permitting the jury to separate after they had received the charge from the court. The facts are: The case was completed late in the afternoon, and the jurymen, not arriving at a verdict, were permitted to go to their respective places of abode for the night. This offense is a misdemeanor, and article 746 of the Code of Criminal Procedure provides that in a case of misdemeanor the court may, at its discretion, permit the jury to separate before verdict, after giving them proper instructions. It is not contended that the court did not properly instruct the jury, or that the jury was guilty of any improper conduct, the contention being that the error consisted in permitting the jury to separate; consequently there is nothing to show that the court abused his discretion in permitting the jury to separate, and, in the absence of any attempt to show improper conduct on the part of the jury, the bill presents no error.

In bill No. 3 it is complained that the court erred in permitting the witness Bessie Craft to testify that Mr. Parris requested her to stay at the house of his wife, and told her she could make lots of money if she would stay there. Of course if the appellant was not present when this conversation took place, and it was not in furtherance of the commission of an offense in which both are principal offenders, there might be grounds of objection, but no such contention is made; the objection being that it would be the husband giving testimony against his wife, and compelling him to do so. Such objection is not sound. In Cook v. State, 22 Tex. App. 525, 3 S. W. 749, it is held that, if husband and wife act together in the commission of an offense, acts and declarations of either which are res gestse of the transaction are admissible. And in Cole v. State, 51 Tex. Cr. R. 91, 101 S. W. 218, and Richards v. State, 55 Tex. Cr. R. 280, 116 S. W. 587, this court has held that even communications between husband and wife in the presence of another person may be proven by such person, and, if that is true, certainly it would be admissible to show the remarks of either to a third person which tended to show that they were engaged in an unlawful undertaking. The same may be said as to the testimony of Praneis Gay, who testified to acts of Mr. Parris which would tend to show that he was aiding and assisting his wife in running the disorderly house.

As to the testimony of Mrs. Hayden that while she was rooming at the house of appellant men would come there and she would go to other places and have sexual intercourse with them, it certainly would be admissible as tending to show that appellant kept a house where prostitutes resided, and especially is this true in the light of Mrs. Hayden’s further testimony that she had sexual intercourse with men many times in the room rented by her from appellant. She testified:

“During the time I was rooming at the house of Mi’s. Parris I had intercourse with Mr. Gay. I also had intercourse with other men while living at Mrs. Parris’ house.” •

In another bill it is shown that a Mr. Bourgeois first testified that he had improper relations with one Inez Wood, who was a roomer at Mrs. Parris’ house' — at defendant’s house. Later he testified that the intercourse did not take place at Mrs. Parris’ house, but he would call and get Inez Wood and take her to other places for that purpose. Defendant moved to exclude the testimony of the witness. The court did not err in refusing to do so, because it tended to show that one of her roomers, Inez Wood, was a prostitute, and the further testimony of this witness would tend .to show that appellant was aware of that fact.

Appellant complains that the court, in refusing to permit her to ask Henry Wood, a witness for the state, if he had not tried to get Madge Robinspn, an inmate of her house, to go around with him to other iilaces and engage rooms for the purpose of entrapping such persons, committed error. As it is not contended that Wood had brought Madge Robinson or sought to get her to bring any other woman to her house, it would be immateral whether or not he had sought to get her to assist him in catching other people at different houses for a similar offense; for, if he had done so, and Madge Robinson refused, it might tend to show animosity towards Madge Robinson, but not towards this appellant. Such fact was foreign to any issue in this case.

The only other bill in the record recites that while appellant’s counsel was speaking he used the following language: “Gentlemen of the jury, I don’t blame Gay for slipping in Mrs. Hayden’s room and stealing a piece,” when Madge Robinson laughed aloud. He then complains that, when the prosecuting officer was replying to his speech, he said: “Look at Madge Robinson; didn’t you see her laugh,” when defendant’s counsel made the remark above quoted. Appellant complains that this remark was very harmful to her. As appellant’s counsel had made the remark and elicited the laugh from Madge Robinson, the incidental reference to such proceeding by state’s counsel would not be cause for reversal of the case.

These are all the bills of exception in the record, and, in our opinion, none of them present reversible error, and the judgment is affirmed.  