Handley v. State , 1884 Tex. Crim. App. LEXIS 135 ( 1884 )

Hurt, Judge.

This is an appeal from a conviction for keeping a disorderly house. The indictment was filed in the county court on May 25, 1883. On September 4, 1883, this case was called for trial, and both parties announcing ready, the cause went to trial.

In bar to this prosecution, the defendant interposed a plea of former acquittal before the mayor’s court of the city of Dallas. In proof of this plea, it was shown that a trial in the mayor’s court, upon a complaint charging appellant with keeping a disorderly house in the city of Dallas, in the county of Dallas, was had on the thirteenth of June, 1883, and that appellant was acquitted of the charge of keeping a disorderly house for the purpose of public prostitution; that the evidence in the mayor’s court was the same as that introduced upon the trial of this case in the county court; that it covered and embraced the whole period of time for and including the fourth day of April, 1883 (at which last mentioned time appellant had been convicted, in the county court, for keeping a disorderly house in the city of Dallas), up to May 25, 1883, and that every act done by her in the keeping of the disorderly house during said period of time was proved on the said trial in the mayor’s court, and by the witnesses who proved the keeping of the disorderly house for the State on this trial.

It has been and is now held by this court that, under the charter of the city of Dallas, the mayor’s court has concurrent jurisdiction of this offense with the county court.

Under the above statement, we are clearly of opinion that, whether the keeping of a house for the purpose of public prostitution, and as a common resort for prostitutes and vagabonds, be an offense continuous in its nature or not, appellant’s plea should have prevailed, for the record shows that the whole ground, all of the acts of the defendant, the full period of time, in fact, the time and acts required to complete the offense, were adduced in evidence upon the trial in the mayor’s court, and that the same acts and time are relied on for a conviction upon the trial of this case.

It was not necessary, nor is it now urged by counsel for appellant, in support of appellant’s plea, that this offense is continuous, and therefore one conviction or acquittal can be interposed in bar to a prosecution, which prosecution, to.convict, must rely upon time covered by that which may have been embraced under the allegations of the first complaint or indictment.

This issue, to wit, is this offense continuous in its character? 'was not considered by the learned judge presiding as involved in the case. The plea, in his opinion, was not supported by the evidence, simply because the punishment prescribed by an ordinance of the city for this offense was not as great as that imposed by the statutes of the State, and hi's honor below instructed the jury, in effect, to disregard the plea of appellant, because an ordinance of the city prescribed a penalty less than that prescribed by the statute. T.he record does not disclose any eu.ch ordinance, and the learned judge must have assumed its existence, or, believing that it was necessary for appellant to introduce in evidence an ordinance conforming the city penalty to that of the State, intended, by his charge, to convey this idea to the jury.

The Legislature having expressly conferred' concurrent jurisdiction of this offense on the mayor’s court, we will presume, until the contrary be proven, that the city has conformed 'the city penalty to that of the State; that is, that it is not less.

We are of the opinion that there was error in the charge of the court relating to this subject, for which the judgment is reversed and the cause remanded,

Reversed and remanded.

Opinion delivered June 18, 1884.