Marx and Peacock v. State

HENDERSON, Judge. Appellants were convicted of keeping a disorderly house, and their punishment assessed at a fine of $200 each; hence this appeal. There was some testimony tending to show the guilt of Peacock; but if there was any evidence tending to show the guilt of Marx it was of a very meager character, and is not sufficient to sustain the verdict as far as said Marx is concerned. As to the other appellant, Peacock, we understand him to complain of the following portion of the charge of the court: “If you believe from the evidence that only one or either of the defendants rented, leased, or hired the use of a house for purposes stated, then you will find both of them not guilty.” It occurs to us that said charge, while not the law, because the jury could acquit one an"d convict the other, and the guilt of one was not dependent on the guilt of the other—yet said charge was favorable to appellant, and he can not complain. Appellant also complains that the court did not draw a distinction between prostitutes and common prostitutes. We do not find anything in the record in this case that renders such a distinction necessary, even if such a distinction be conceded under our statutes regulating the keeping of disorderly houses. We have carefully examined the record, and in our opinion the testimony is sufficient'to sustain the conviction as to appellant Peacock, but it is not sufficient to sustain the conviction as to the other appellant, Marx. The judgment is therefore reversed and remanded as to said Marx, and affirmed as to appellant. Peacock. Remanded as to Marx; affirmed'as to Peacock.