Truesdale v. State , 107 Tex. Crim. 105 ( 1927 )

The appellant was convicted of soliciting and procuring a female for immoral conduct with a man, and his punishment assessed at a fine of $50 and thirty days in jail.

The appellant was charged by information with violating Art. 525, P. C., in that he "did unlawfully invite, solicit, procure and allure a female, to-wit, Mabel Burns, to visit and be at the Yale Hotel in San Antonio, Bexar County, Texas, for the purpose of meeting and having unlawful sexual intercourse with a male person, to-wit, George Van Vleck, alias George Lee," etc. The prosecuting witness, Van Vleck, was an officer in the city of San Antonio, who, under the direction of his superior officers, was sent to the Yale Hotel to investigate and observe if there were any violations of the law being carried on at said place. Dressing in plain clothes, the officer registered at said hotel under the name of George Lee, and while appellant, who was a porter at the hotel, was directing him to his room, appellant offered to get the officer a woman if he wanted one. The prosecuting witness, after conferring with other officers, marked five $1.00 bills, and thereafter the appellant returned to the room occupied by said Van Vleck and brought with him one Mabel Burns, stating to the officer, "Here's your chicken now." Van Vleck gave appellant one of the marked bills for his services and gave the woman the other four marked bills. Two policemen, Vogler and Littlepage, entered the room a few minutes later, arrested appellant and the woman, who was partly undressed, and found the marked bills in their possession. The woman, upon being carried to the police station, entered a plea of guilty and was fined $10.00.

The appellant defended upon the ground that the woman, of her own volition and without his consent, entered the hotel and went to the room occupied by the prosecuting witness, that he had nothing whatever to do with her going there, and that the marked money found in his possession had been paid to him by the said Van Vleck, alias Lee, for the rent of the room. The police officer Vogler testified that when he and Littlepage asked appellant where George Lee was, he denied that there was such a man at the hotel and denied that there was a woman in the room with him. These were the principal facts introduced in evidence upon the trial.

The appellant, after the evidence was closed, moved the court for an acquittal, alleging that the officer Van Vleck, alias Lee, was a principal to the alleged offense and that the state had failed to corroborate his testimony, and that the state had failed to prove by competent evidence the purpose for which said female was allured to the room of said Lee, and in what manner she was allured thereto. The court overruled the motion and appellant excepted to said action, as shown by appellant's bill of exception No. 2. We are of the opinion that the court committed no error in overruling this motion, and think that if the appellant sought to attack the sufficiency of the information, which was not void on its face, he should have presented a timely motion to quash before announcing ready and before the evidence was introduced. Melley v. State,248 S.W. 367.

The appellant, in his brief, cites us to the case of Hammonds v. State, 272 S.W. 791, which involved a prosecution under the statute making pandering a felony and in which the indictment charged appellant with "unlawfully procuring" a female, etc. The court held in that case that the motion to quash should have been sustained, for the reason that the indictment failed to allege in what manner the appellant procured said female. However, that case is not at all analogous to the instant case, in that the appellant is here charged with inviting, soliciting, procuring and alluring a female, thus following the wording of the statute strictly, and the offense charged being a misdemeanor, then under such allegations if the state proved either one of the methods alleged, it would be sufficient. Warner v. State, 66 Tex.Crim. Rep., 147 S.W. 265; Ray v. State, 71 Tex.Crim. Rep., 158 S.W. 807. It certainly cannot be contended that "inviting" and "soliciting" are such terms as require additional allegations to apprise the appellant of the nature of the method alleged to have been resorted to by him in obtaining the female. These are terms used in ordinary parlance and require no additional explanation or details in the way of allegations to charge the offense. Webster defines "invite" as meaning "to request with real or seeming graciousness, to do or forbear some act, to give invitation," and defines "solicit" as meaning "To ask earnestly, to endeavor to obtain by asking," etc. The words "procure" and "allure" in this information can be eliminated as surplusage, and still the information would be good.

In bill of exception No. 1 complaint is made to the action of the court in permitting the state's witness Vogler to testify that he was acquainted with the general reputation of Mabel Burns on January 25, 1926, and that she bore the reputation of being an immoral person. Appellant objected to this testimony on the ground that it amounted to a conclusion on the part of the witness. Under the facts of this case, this bill, as presented, shows no error. Testimony as to the reputation of another is always largely based upon the opinion and conclusion of the witness.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.

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.

Morrow, P. J., not sitting.

ON MOTION FOR REHEARING.