No. 696. | Tex. Crim. App. | Dec 20, 1893
Lead Opinion
Appellant was indicted under article 341, Penal Code, as amended by the Act of 1889, page 33, for keeping a disorderly house. On the trial, the State was permitted to introduce in evidence affidavits made before the assessor and collector of taxes of Lamar County and the city of Paris, in which appellant swore that she was the owner of the premises on which the house of prostitution was kept. The substance of the objections urged is, that appellant, not having been shown to be the party who signed the affidavit, was not bound thereby, and they did not tend to prove ownership in her. Conceding, for the argument, this position to be well taken, and the testimony incompetent, "it does not follow that the judgment must of necessity be reversed, for it is not every error of this sort, namely, the admission of incompetent evidence, which works a reversal of the judgment." Malcolmson v. The State, 25 Texas Cr. App., 267. When we look to other evidence in the case, we find that her possession and ownership of the premises is overwhelmingly proved, and leaves it unquestioned that she occupied, controlled, and exercised ownership over the house.
It is contended the court erred in not charging the jury that each day the house was kept as a disorderly house was a separate offense. Under this form of indictment the charge, as given, is correct, and the omission complained of is not error. That phase of the statute should not have been given in this case. Where a conviction is desired for each day, the pleader may allege the different days in separate counts in the same indictment, and obtain a conviction upon each count upon the same trial, if the proof sustain the allegations. Under such an indictment, if the proof is confined to the named day, and the accused kept the house on each day alleged, a conviction can be had for each day so kept, and a conviction be had on each count on the same trial. We find no error, and the judgment is affirmed.
Affirmed. *476
Dissenting Opinion
While concurring in the conclusion reached, I dissent from so much of the opinion as holds that the State may group in one indictment, by means of counts, any number of misdemeanors, and place the defendant upon trial for them. Whatever it may be in other States and jurisdictions, such has never been the practice in Texas, and I can see no reason for the proposed departure.
Addendum
In support of the proposition contained in Judge DAVIDSON'S opinion, that under proper indictment the accused can (on the same trial) be convicted for each day's violation of the statute, I submit the following authorities: 1 Bish. Crim. Proc., sec. 452; Kane v. The People, 8 Wend., 203" court="None" date_filed="1831-12-15" href="https://app.midpage.ai/document/kane-v-people-6119000?utm_source=webapp" opinion_id="6119000">8 Wend., 203; Commonwealth v. McChord, 2 Dana, 242" court="Ky. Ct. App." date_filed="1834-10-08" href="https://app.midpage.ai/document/commonwealth-v-mcchord-7379927?utm_source=webapp" opinion_id="7379927">2 Dana, 242; Stone v. The State, 20 N.J. Law, 404; The People v. Costello, 1 Denio, 83" court="None" date_filed="1845-05-15" href="https://app.midpage.ai/document/people-v-costello-6142198?utm_source=webapp" opinion_id="6142198">1 Denio, 83; The People v. Gates, 13 Wend., 311" court="N.Y. Sup. Ct." date_filed="1835-01-15" href="https://app.midpage.ai/document/people-v-gates-5514448?utm_source=webapp" opinion_id="5514448">13 Wend., 311; The State v. Kibby, 7 Mo., 317" court="Mo." date_filed="1842-04-15" href="https://app.midpage.ai/document/state-v-kibby-6610573?utm_source=webapp" opinion_id="6610573">7 Mo., 317; United States v. O'Callahan, 6 McLean, 596" court="None" date_filed="1855-07-15" href="https://app.midpage.ai/document/united-states-v-ocallahan-9300634?utm_source=webapp" opinion_id="9300634">6 McLean, 596; Orr v. The State,