Hardeman v. State , 100 Tex. Crim. 358 ( 1925 )

This case was dismissed at a former day of this term because of a defective appeal bond. Appellant has shown to this court that the record has been corrected in this respect and the appeal is reinstated and the case is now properly before us for disposition.

The testimony shows that on or about the third of April the witness Teas went to home of the defendant and asked her for a room and asked her if she had any ladies and she showed him a room and asked him would he like to see one of the girls and he told her yes, and that immediately a girl came to his room, and he paid the appellant for the room. This witness testified that he had intercourse with the girl in said room. The record fails to disclose any other facts that would strengthen the above testimony to the effect that appellant was keeping a bawdy house.

We have, therefore, the question presented, 'does proof of one act of illicit intercourse constitute the keeping of a bawdy house under our statutes?' The statute under which this appellant was convicted reads as follows:

"a bawdy house is one kept for prostitution or where prostitutes are permitted to resort or reside for purposes of plying their vocation."

Under this statute, one of two things must be shown before a conviction can be sustained; first it must be shown that the house in question is a house of prostitution, or second it must be shown that it is a house where prostitutes are permitted to resort or reside for the purpose of plying their vocation. Proof of either of these facts under our statute will constitute an offense. But neither of the constituents of the offense of keeping a bawdy house can be sustained by proof of a single act of prostitution in the house in question. People v. Gastro, 75 Michigan 133. Buchanan v. State, 1 Idaho 681.

A similar question was decided in the Buchanan case, supra. Under the Idaho statute, a bawdy house was defined to be a house of ill-fame kept for the resort and convenience of lewd people of both sexes. Under that statute, the supreme court of Idaho held that the residence of an unattached woman who is a prostitute does not become a bawdy house because she may have admitted one man to an illicit co-habitation with her. The court in that case said: "The common law did not undertake the corrections in such cases but left the parties to spiritual supervision and penancies."

In Gastro's case, supra, the supreme court of Michigan held that a single act of prostitution or similar acts by one person do not constitute the house a bawdy house.

In this case, the facts show nothing more than the meeting one time of one couple in the house in which the appellant lived and under the authorities above cited as well as on the reason of the thing, we hold that this single transaction is not sufficient to show either that the house in question is a house of prostitution or that it is a house where prostitutes are permitted to resort or reside for the purpose of plying their vocation.

Because the facts are wholly insufficient to support the verdict, it is our opinion that the judgment should be reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.