Stone v. State

Willson, Judge.

I. The notes and mortgage offered in evidence by defendant, and rejected, were not immaterial or irrelevant. They tended to show that Behrens, and not the defendant, was the keeper of the house. It was error to reject them. (Whart. Cr. Ev., 9 ed., sec. 24.)

II. That portion of the charge of the court which intsructs the jury that proof of the general reputation of the house is sufficient to establish the character of the house is a charge upon the weight of evidence. It is the settled doctrine in this State that the character of a house alleged to be a disorderly house may be established by proof of its general reputation as such, and it has been held that such proof is sufficient to warrant the jury in finding the house to be disorderly. (Morris v. The State, 38 Texas, 603 ; Sylvester v. The State, 42 Texas, 496; Allen v. The State, 15 Texas Ct. App., 320; Burton v. The State, 16 Texas Ct. App., 156.) While this doctrine may be against the weight of authority, it is the established rule in this State, and we can see no good reason why it should be changed. All the authorities hold that it was competent to prove the character of the house by proving the general reputation of its occupants for lewdness. (2 Bish. Cr. Proc. sec. 113; Whart. Cr. Ev., 260, 261; 3 Greenlf. Ev., sec. 186.) It seems to us that there is no material difference between proof of the character of the house and proof of the •character of the occupants of the house. The proof of one establishes the other.

But, notwithstanding the paragraph of the charge above referred to is correct in the abstract, it invades the province of the Jury. It was the province of the jury to determine the sufficiency of the evidence. It was for the court to admit the evidence, and for the jury to say whether or not it sustained the charge. “It is not for the judge to say what evidence shall be sufficient to warrant the jury in convicting.” (Rice v. The State, 3 Texas Ct. App., 451.) This erroneous paragraph of the charge was excepted to at the time of the trial.

III. There is no error in the fourth paragraph of the charge. Under" the allegation that the defendant kept the house he could be convicted, if the evidence proved that he was in any way concerned in keeping it. Keeping, or being concerned in keeping such house, is one and the same thing within the meaning of the law. (Penal Code, Art. 341.)

IV. It was not error to omit to charge the jury the rule as to ■circumstantial evidence. The case is not one of circumstantial ■evidence alone. There is direct evidence proving the guilt of the defendant.

V. It was error to not instruct the jury in relation to accomplice testimony. Josie Spence, a material witness for the prosecution, was unquestionably an accomplice in keeping the disorderly house, and she was the only witness who testified directly that defendant kept the house. (Phillips v. The State, 17 Texas Ct. App., 169; Smith v. The State, 13 Texas Ct. App., 507; Howell v. The State, 16 Texas Ct. App., 93; Cook v. The State, 14 Texas Ct. App., 96; Kelley v. The State, 1 Texas Ct. App., 632.)

VI. In his address to the jury-, the county attorney used the following language: “This defendant, I. L. Stone, is a contemptible and pusillanimous puppy. He comes into this court with the swaggering insolence of a grocery bully, and pleads not guilty to this charge. During the dead hours of night, while his family were at their humble" home shedding tears of regret ■over the sad downfall of the husband and father, this .man," this biped, I. L. Stone, is bedding up with these prostitutes. Had I the command of language to stand here and express my contempt of this thing, this I. L. Stone, I could stand until the dawn of the resurrection day, and then say less: than he merits. If I were .going to establish a hell on earth, and invade the realms of darkness for one to supervise it, I would leave there - and come back here and take I. L. Stone, for he is a fair representative of the devil.”

Opinion delivered November 10, 1886.

Such language was uncalled for and highly reprehensible. It was not argument, not a discussion of the evidence. It was a personal and undignified abuse of the accused, such as should never be tolerated in a court of justice. It was calculated to arouse the passions of the jury against the defendant, and to-materially prejudice him in the trial. It was such error in the proceedings as would of itself cause a reversal of the judgment. (Ricks v. The State, 19 Texas Ct. App., 308; Cohn v. The State, 11 Texas Ct. App., 391; House v. The State, 9 Texas Ct. App., 567.)

Because of the several errors we have mentioned, the judgment is reversed and the cause is remanded.

Reversed and remanded.