Hearne v. State.

PRENDERGAST, Presiding Judge. Appellant was convicted for unlawfully keeping a disorderly house,—an assignation house, and her punishment assessed as prescribed by law. It is unnecessary to detail the evidence. We have carefully considered it and it is sufficient to show her guilt clearly, fully, completely and satisfactorily. In appellant’s first bill of exception she complains that the State was permitted to ask Barden: “Do you know whether a fellow named Charlie Armington lived with defendant ?” to which he answered, “I don’t know.” This clearly shows no error. Sweeney v. State, 65 Texas Crim. Rep., 593, 146 S. W. Rep., 883, and cases therein cited. By other bills appellant objected to the witnesses McPhael and Spradley testifying in effect the arrangement they made with two girls,— .Mary and Ethel,—and what was said between them at the time in arranging to go to appellant’s house and procure rooms for the purpose of sexual intercourse. The record shows that these girls had the reputation of meeting men at assignation houses for sexual intercourse and that Spradley that night first met them on the streets of Houston near appellant’s house; that McPhael came up and he introduced him to them; that they then made arrangements with these two girls to meet them at' Mrs. Hearne’s for said purpose, the girls themselves suggesting Mrs. Hearne’s as the place for the purpose, telling the men to go and see Mrs. Hearne, engage the rooms and tell Mrs. Hearne that it was for Mary and Ethel. The parties then separated, the men going direct to Mrs. Hearne’s house, seeing her, telling her the message the girls had sent her and she thereupon rented to them two rooms for said purpose and the girls in a few minutes thereafter came there and appellant took them to one of these rooms all for the purpose of-carrying out the object of the men and girls to then and there have sexual intercourse. Clearly all this testimony was admissible. So was the testimony of Bass that he saw these two men at the time they were making this arrangement with these girls and watched them, and subsequently, on thé same night, went to Mrs. Hearne’s house and caught these two men and these two girls in said house on that occasion. Under a misapprehension the court, over appellant’s objection, permitted Grayson to testify that in Eebruarjq 1913, he went to appellant’s said house and pulled the house and arrested her for running a gambling *393 house, finding seven or eight men therein at the time, some hiding in various ways. As soon as the court discovered his mistake in admitting this testimony, he excluded it and told the jury that he had admitted it under a misapprehension and that they were not to consider said testimony for any purpose. While the court should not have admitted this testimony, as soon as he discovered his mistake, he corrected it and as the matter is presented it shows no reversible error. The only other question is raised by appellant’s fifth bill. It, like each of appellant’s other bills, is too meager and wholly insufficient to require consideration. (James v. State, 63 Texas Crim. Rep., 75; Conger v. State, 63 Texas Crim. Rep., 312.) This bill complains of this language of the assistant district attorney in his opening argument: “Gentlemen of the jury: Look at the defendant. Look at the large diamonds in her ears, and other diamonds she wears. .Don’t you know that every glitter from them denotes a lost soul?” The bill in no way discloses under what circumstances or surroundings this remark of the attorney was made. If we could look to the record to complete the bill, or to make it intelligible,—even if that could he done,—it would show that appellant herself testified on the stand. Without doubt the jury did look at her and observed her whole conduct, demeanor and dress and could not possibly have avoided seeing her large diamonds which she wore, if she wore any. The bill in no way discloses that she did not wear diamonds on this occasion. The district attorney’s question, “Don’t you know that ever glitter from them denotes a lost soul ?” was a mere flight of oratory, or poetic question. This bill in no way discloses how this did or could injuriously affect appellant in the trial of this cause. This court is frequently called upon to pass upon complaints of prosecuting attorneys’ arguments and occasionally reversed cases because thereof. Bach casé must largely stand upon its own bottom. The rules with reference thereto are well established and have many times been clearly enunciated by this court. This court, through Judge Willson, in Pierson v. State, 18 Texas Crim. App., 534, said: “It has become quite common to except to the remarks of counsel for the State in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The State has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us, first, that the remarks were improper, and, second, that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.” The Pierson case, supra, has manv times been cited and approved by this court. In House v. State, 19 Texas Crim. App., 227, wherein a much worse statement, was com *394 plained ofj by the district attorney, Presiding Judge White said: “We construe the remark to be not so much evidence of a desire to make use of foreign matter to the injmw and prejudice of defendant as an- impassioned expression, highly exaggerated it may be, but springing inadvertently from the heat of debate. If all such remarks were held reversible error, but few convictions would stand the test where the case had been hotly contested by able and zealous counsel in the courts below.” Again, in Tweedle v. State, 29 Texas Crim. App., 586, this court, in discussing the argument of the district attorney in that case, through Judge Davidson, said: “Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice the rights of the defendants. To reverse all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Texas Crim. App., 227; Bass v. State, 16 Texas Crim. App., 62.” See, also, McConnell v. State, 22 Texas Crim. App., 354; Young v. State, 19 Texas Crim. App., 536; Frizzell v. State, 30 Texas Crim. App., 42; Rahm v. State, 30 Texas Crim. App., 310; Tipton v. State, 30 Texas Crim. App., 530; Lewis v. State, 29 Texas Crim. App., 201; Walker v. State, 28 Texas Crim. App., 503; Love v. State, 35 Texas Crim. Rep., 27. We cite only some of the older cases. A great many cases to the same effect could be cited down to this very date, but we deem it unnecessary. In our opinion this bill does not show reversible error. 'The judgment is affirmed. Affirmed. DAVIDSON, Judge, dissenting.