John Secrist v. State

KRUEGER, Judge. The appellant was convicted of the offense of keeping and being concerned in keeping a bawdy-house, and his punishment was assessed at a fine of $200.00 and confinement in the county jail for a term of twenty days. Appellant’s first contention is that the court erred in overruling his motion for a peremptory instruction of not guilty. The testimony adduced by the State was such as to require submission of the case to the jury. Hence the court did not err in overruling the motion. Bill of exception number two shows that appellant objected to the court’s charge because the court failed to define the terms prostitute and prostitution and instruct the jury on accomplice testimony, etc., but appellant failed to submit requested instructions with reference to the matters complained of. This being a misdemeanor it required appellant to submit special requested instructions covering the matters desired to be submitted to the jury and having failed to do so, no reversible error is shown. See Reed v. State, 95 Texas Crim. Rep., 492; Carter v. State, 90 Texas Crim. Rep., 248. Bills of exception numbers three and four complaining of the action of the trial court in failing to submit to the jury his special requested instructions was not error as they were upon the weight of the evidence. By bills of exception numbers five and six appellant complains of the action of the trial court in permitting the State to prove that Babe Gastello had been living at the Colonial Hotel about six or seven months; that the witness was asked: “What is her vocation? What does she do? How does she make her living?” A. “Well, I don’t know, she told me that”— The objection to said testimony was that it had no bearing on the guilt or innocence of the defendant. The fact that Babe Gastello had been living at the Colonial Hotel about six or seven months was admissible in the light of the entire record. The fact that the witness did not know how she made her *185 living without stating what she told him could not have been hurtful. Therefore we overrule the exception. By bill of exception number seven appellant complains that the trial court erred in permiting the State to prove that Babe Gastello while living at the Colonial Hotel had not been doing anything, that she had been sick the biggest part of the time; and then permitting the county attorney to ask the witness: “Have you ever seen her go to any man’s room and go inside and talk to them and close the door behind her?” — to which the appellant objected without giving or assigning any reason for his objection. Thereupon the county attorney asked the witness: “Didn’t you in a Court of Inquiry in the court house testify to this, T have seen her go up to talk to men in their rooms’? A. I told you that.” We are of the opinion that the court did not commit error because the county attorney had a right to refresh the memory of the witness, if possible. See Spangler v. State, 41 Texas Crim. Rep., 424; Renfro v. State, 42 Texas Crim. Rep., 393; McLin v. State, 48 Texas Crim. Rep., 549. Bill of exception number eight embraced the same subject matter as bill of exception number seven and is overruled for the same reason. By bill of exception number ten appellant complains of the action of the trial court in permitting the county attorney to ask Josh Glenn, a porter at the Colonial Hotel, what Babe Gastello’s vocation was — to which he answered that she had not been doing anything, that she had been sick the biggest part of the time. Then he asked the witness the following question: “Didn’t you say that Babe Gastello was a hustling woman and that is how she made her money? Did you tell me that?” — to which appellant objected on the ground that the party Babe Gastello was not even present in court, was not being tried, and had not taken the stand,, and, therefore, her character was not in issue. The inquiry made as described by the bill was not subject to the objections interposed by the appellant. The county attorney then propounded the following question to the witness: “Isn’t it a fact that you told me that a number of men had requested you to get Babe for them? A. You asked me that, yes sir. “Q. Did you not tell me that you went and told Babe and she did go to their room? A. Some of them, the ones she knowed.” To these last questions and the answers given no *186 objection seems to have been urged. Hence no reversible error is shown. The matters complained of in bill of exception number thirteen seem to have been withdrawn by the county attorney and the jury instructed not to consider the question for any purpose. Hence no error is shown. Bill of exception number fourteen shows that the county attorney asked the witness Bobby Lea the following question: “Didn’t you tell me that she was a hustling woman? Aren’t those the words you used? A. No, sir. I don’t remember.” There the matter ended. This shows no error. Bill of exception number fifteen complains of the action of the trial court in permitting the county attorney to show the general reputation of the Colonial Hotel for permitting immoral women to ply their vocation. The testimony was admissible under the rule announced by this court in the case of Key v. State, 71 Texas Crim. Rep., 485. By bill of exception number sixteen appellant complains of the action of the trial court in permitting the county attorney to prove that Babe Gastello was a common prostitute. Appellant objected on the ground that her reputation was not involved and the question was immaterial, irrelevant, and prejudicial. It was shown that Babe Gastello had been residing at the Colonial Hotel for the past six or seven months prior to the trial and if she was a common prostitute, it was permissible to show it in support of the allegations in the information that appellant was keeping or was concerned in keeping a bawdy-house. Bills of exceptions numbers nine, twelve, seventeen, eighteen, nineteen, twenty, twenty-one, and twenty-two are without merit and are overruled. Finding no reversible error in the record, the judgment of the trial court is in all things 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.