Harden v. State (136 S.W. 768, 1911)

' DAVIDSON, P. J.

Motion is made by ithe Assistant Attorney General to dismiss this appeal because the recognizance contained in the record does not comply with Acts 25th Leg. 1897, c. 5, and the prescribed form as found in article 887 of the Code of Criminal Procedure. The recognizance in this particular case fails to recite the amount of the fine or punishment assessed against appellant, and it also fails to conclude with the words “in this case,” as is prescribed in said form. The motion is well taken. Walker v. State, 56 S. W. 913; McDade v. State, 56 S. W. 916; Beck v. State, 56 S. W. 917; Adams v. State, 44 Tex. Cr. R. 534, 72 S. W. 588.

' The motion to dismiss the appeal is sustained, and the appeal is dismissed.

On Defendant’s Motion for Rehearing.

On a former day of this term the appeal was dismissed for want of a legal and sufficient recognizance. Since that dismissal the appellant has filed with us a sufficient recognizance, which he is authorized to do under the act of the Legislature, and based upon this he moves a reinstatement of the case and a hearing upon the merits. The case under the showing made will be reinstated, and the questions suggested for revision will be reviewed.

The complaint charges a violation of article 359, Pen. Code 1895, as amended by Acts 1907, p. 246. It alleges that he kept a disorderly house where “spirituous, vinous, and malt liquors were sold and kept for sale without a license first having been obtained under the laws of the state of Texas to retail such liquors,” and it further charges that he “sold and kept for sale and was concerned in selling spirituous, vinous, and malt liquors without having first obtained a license” to retail such liquors, and that he did not have such license. The information charges only a violation of the local option law in stereotyped form, without any reference to the law in respect to disorderly houses. The complaint does not even indirectly refer to the local option law, and the information does not refer in any manner to the disorderly house law. As the record presents it, we have a complaint, followed by an information which does not charge the offense set out in the complaint. It is settled both by statute and decision that there must be a complaint as a predicate for an information, and an information predicated, upon that complaint, and that the information must follow and conform to the charge set forth in the complaint. It has always been held that, unless this has been done, the information is vicious. To sustain this, we think it hardly necessary to cite authorities. However, we will refer for collation of authorities to White’s Ann. Code Or. Proc. § 396, where a great number of cases are cited. We are not aware of any case in which it has been held otherwise in. this state.

Where the information charges a violation of the local option law, it must be preceded, therefore, by a complaint Charging that" offense. There is no charge in the complaint that the local option law was violated, and no intimation even of its esistence. The information does not charge a violation of the disorderly house act, nor is it even remotely or indirectly referred to in the information. It is true that one phase of the disorderly house act does prohibit the sale of intoxicating liquors without first having procured a license, and if such sales should occur in a disorderly house in local option territory a prosecution might be entertained by the courts for that offense, yet the complaint must so charge. The local option law does not apply to nor prohibit sales of other things and matters than intoxicating liquors that may occur in disorderly houses. Other sales, or the sale of other things, might readily occur in a house of prostitution without infringing the local option law. There is a difference between the sale of intoxicating liquors and the sale of another thing or other things that are not intoxicating, and it is not difficult, we think, to ascertain this fact; nor ought it to be difficult to ascertain or realize the difference between local option laws and disorderly house acts. We think there would be quite a difference, or might be quite a difference, and a line of demarcation might z’eadily be drawn as to where local option ends and prostitution begins. These two matters are not thought to be even brought within the rule of ejusdem generis by the stretch of any rule of construction or interpretation. Local option laws only prohibit sales of intoxicants. There has not as yet been or sought to be enacted any law authorizing a referendum to prohibit sales of prostitution — at least, none has been called to the attention of this court; but even if there was such' an act, still the complaint and information must charge the same offense, whatever that offense may be.

Again, the information does not charge an offense as viewed from another allegation. It charges appellant with selling to himself in the following language: “Reagan Harden did then and there unlawfully sell to Reagan Harden intoxicating liquors,” etc. This would not charge a violation of the law. A sale must be to some other person than the seller.

The motion for rehearing is granted, the affirmance is set aside, the judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

During the present term of the court the judgment herein was reversed because of the fact the record showed that the complaint charged one offense and the information another and distinct offense. The state filed a motion for rehearing, setting out a mistake on the part of the clerk copying the information in the record, and filed a corrected transcript, showing there was a proper information filed. The case is reinstated, to be considered upon its merits.

Appellant was charged with and convicted of keeping a disorderly house; the allegation being the house was disorderly by reason of the fact that intoxicating liquors were sold in it. The evidence shows the house was controlled by Savage. Appellant’s connection with the house, if at all, was as employé in the poolroom department of the house, and his duties seemed to have consisted of placing the balls in the racks. There is no evidence showing that he was connected with the sale of intoxicating liquors as far as we understand this record. There is no evidence showing or tending to show that he was the keeper of the house, or in any wise concerned in the keeping of the house, otherwise than as stated. On one occasion some of the witnesses testify they saw him sitting near the bar in the room where beer and soda water and things of that sort were sold, and he was seen by one witness to go to the cash register, and either place 50 cents in it or get change for 50 cents; but this witness saw him sell nothing, and did not know why it was he went to the cash register. But there is no evidence, so far as we understand this record, that he ever sold or was concerned in selling, even as employé, any intoxicants. In this state of the record, we are of opinion that the state has not made a case.

Therefore the judgment is reversed, and the cause is remanded.