156 S.W. 927 | Tex. Crim. App. | 1913
Appellant was prosecuted under a complaint and information containing two counts, the first charging him with keeping a disorderly house, in that he did keep a house in which prostitutes were permitted to resort and reside; the second also charging the keeping of a disorderly house, in that he did keep a house where spirituous, vinous and malt liquors were sold and kept for sale, without having obtained *210 a license. Both counts were submitted in the court's charge, and the jury found him guilty under each count, and assessed his punishment at a fine of $200 and imprisonment in the county jail for twenty days on each count.
Appellant in his brief states: "Appellant has lately learned that the trial court, in this cause, by having failed to either approve or disapprove appellant's bills of exception herein, has to a certain extent hog-tied defendant, so that defendant can not lustily kick against this double punishment." However, further in his brief he does attempt to "lustily kick," and if the complaint and charge of the court are subject to the construction that he places thereon, he would be justified in so doing. In the information it is charged appellant kept a disorderly house in two different ways on the same date — on or about the 6th day of October. However, as has been frequently decided by this court, that as to the date named, it was not material to prove that exact date, as the offense can be proven to have been committed at any time within the period of limitation — two years prior to the filing of the complaint. Cudd v. State, 28 Texas Crim. App., 124; Abrigo v. State, 29 Texas Crim. App., 143; Crass v. State, 30 Texas Crim. App., 480; Shuman v. State,
If it was intended to charge only one offense to have been committed in two different ways, of course, only one punishment would be authorized. But if each count was intended to and did charge a separate and distinct offense, then he could be convicted under each count. This rule was announced in Hall v. State, 32 Tex.Crim. Rep., and has been adhered since that date; Dancey v. State, 35 Tex.Crim. Rep.; Scales v. State, 46 Tex.Crim. Rep.; Witherspoon v. State,
The judgment is affirmed.
Affirmed.
[Rehearing denied May 21, 1913. — Reporter.]