Wyatt v. State , 80 Tex. Crim. 281 ( 1916 )

HARPER, Judge.

Appellant was convicted under an indictment charging him with keeping and aiding, assisting and abetting the keeping of a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation.

The court did not err in overruling the motion to quash the indictment. Both counts were based on the same transaction, one charging him with committing the offense as the agent of T. J. Leaehem, and the other charging him directly with keeping. Both counts specifically charge an offense, and it is permissible to charge the offense to have been committed, in different counts, in any of the ways denounced by the statute. Neither .is the State required to elect upon which count ' it will prosecute under such circumstances.

Appellant’s motion for a continuance fails to show he exercised diligence to secure the attendance of the absent witness. He waited to have process issued until the day immediately preceding the day the case was called for trial, and it is shown that no one at that time knew the whereabouts of the witness, and appellant does not show that he made any effort to ascertain the location of the witness.

The testimony of Ethel Ward was properly\dmitted in evidence as conveying knowledge to appellant of the character of the women resorting to and residing at the house, and the further fact they were at that house plying their vocation. Appellant testified he did not know the character of the women and did not know they were plying the vocation of prostitutes while they stayed at the house; that as soon as he ascertained that fact he put tbe women out of the house. . Ethel Ward testified she stayed at the house for a month; that her sister and another woman also stayed at this house during all the time she stayed there; that all three were prostitutes plying their vocation, and as carrying knowledge to appellant she testified: “This man Wyatt came to my room several times while I was there and stayed with me a while each time. He had intercourse with me the first night I was up there and told me to be quiet up there. Certainly Wyatt knew what I was doing up there at the house.”

The judgment is affirmed.

Affirmed.