The information and complaint contain several counts; the following, however, was submitted: "The said William Lingenfelter was then and there a male person who habitually associates with prostitutes and who habitually loiters in and around houses of prostitution, against the peace and dignity of the State."
The facts show that appellant was a barber and worked at the Saint Charles barbershop and received sixty per cent of the money he took in for his wages. The State's case is shown, substantially, by the following evidence: Minnie Lee Jones said she lived at Miss Bell Pence's until about a week prior to her testifying, when she moved away. That she had seen the defendant in the house at night and in the morning saw him eat breakfast there several times. She lived at this house for five or six weeks; did not see defendant every day, and the testimony she gave is confined to the time she was staying at Bell Pence's house. She did not know where defendant slept, but had seen him in Bell Pence's bed. She said she understood defendant was working at the Saint Charles barbershop. She testified also that she had seen defendant with a book at Miss Bell Pence's place, and defendant had told her what she owed. This was a day book. Miss Belle Pence is the keeper of a house of prostitution, and girls board with her and go to bed with men for money and have sexual intercourse with them. She also states that she had seen parties go to Miss Bell Pence's for defendant's laundry. She testifies as follows: "I had a racket with Miss Bell. She came in drunk that night and jumped on us. It has been a week since I left Miss Bell's. I went from there to 312 North Second Street. I have forgotten the landlady's name. I have been a prostitute nearly two years. I have been traveling for a company. I have been a show girl. The last time I saw defendant down there was the night before they went fishing. I could not say what date it was. I can not say any certain days that I saw defendant eat breakfast. Alice and Vera were there when defendant ate with us. Willie was there also." Irene May testified she had known the defendant for about five months, and she also at the time lived at Miss Bell Pence's house of prostitution. She moved there in February, and lived and was there until about three weeks before testifying. During the time she was there she saw defendant around Miss Bell's house; would see him often; that he would go to Miss Bell's room, and she had seen defendant eat there a time or two she believed. She used morphine, she says, for a while, given her by Dr. Smith; that she had been a prostitute for about four years. At the time she lived with Miss Bell defendant was working at the Saint Charles barbershop. Grace Thompson testified she had known Miss Bell for about five years; got acquainted with defendant last fall at the Cotton Palace. That she had lived at Miss Bell's until three months before the trial and had seen defendant there. She said she was only testifying what she had *Page 188 observed at Bell Pence's before she left there; that she lived in the Waco reservation for nearly two years. Lee Huff testified he was a police officer, and had seen defendant in the reservation, but not many times, and had seen him also at Bell Pence's house. The time he speaks of, he says, covers a good many months, running back to last fall. Bell Pence's house was a bawdy house. He said he had been in the house frequently when he did not see the defendant there. C.P. Carlton testified he was a police officer, and had seen defendant in the reservation three or four times; seen him undress in a room. Alice Gordon testified to practically to the same facts as did Vera Gordon, that they lived at Bell Pence's house, and had been living there for five weeks, and that it was the first bawdy house in which they had ever lived, and had been engaged in this business nine weeks; had seen defendant at Miss Bell's house just twice; never saw defendant eat there; that all eat at the same time, and if defendant had been there they would have seen him; that the board was paid to Miss Bell and no one else; that she had had occasion to sleep with Miss Bell; that she knew Vera Gordon, was related to her; that in case either of them had all night company, the other one slept with Miss Bell. She said she had never seen defendant in Miss Bell's room; that she saw the defendant there the first of the month and one time before; did not know defendant before that time; he did not stay there that night. While he was there this witness saw him talking to Miss Bell. Vera Gordon testified to practically the same facts. She stated she slept with Miss Bell sometimes. Billy Smith testified he lived at 822 Austin Street; and had lived there over a year; was a married man, and he and his family lived together at 822 Austin Street. That he knows defendant; he rooms at his house; that "defendant's room is the first one as you enter my house to the right." That he had been there several months; keeps his trunk there. Ed Fuller testified he ran the Saint Charles barbershop; that it adjoins the saloon; that defendant works in the barbershop; that he knew nothing about defendant going to the reservation. John Swafford testified appellant worked at Saint Charles barbershop; that he, witness, owned half interest in the shop. This is practically the case on the facts.
Appellant contends the State failed to make a case, first, because there is no evidence defendant was a male person, and, second, it does not prove the allegations contained in the information, that he habitually associated with prostitutes and habitually loiters in and around houses of prostitution. The only evidence in the entire record showing appellant was a male person is found in the following language: "Defendant gets sixty per cent of what he takes in." This was referring to work at the barbershop as a barber. We would hardly feel justified in reversing the case because the evidence does not show he is a man, with this statment in the record. We would suggest that the prosecution should prove without leaving to inference material facts in a case when they have the witnesses on the stand by whom they can prove such facts. Circumstantial evidence ought not to be resorted to when positive evidence *Page 189 is before the court. It would have been no trouble if defendant was in fact a man for the State's witnesses to testify to the fact that he was a man.
It is contended the evidence is not sufficient to sustain the contention that appellant habitually associated with prostitutes and habitually loiters in and around houses of prostitution. We believe the State has not met these requirements of the statute. In the case of Ellis v. State, 65 Tex.Crim. Rep., 145 S.W. Rep., 339, this court, speaking through Judge Harper, said: "We hardly think the evidence would support the conviction. The statute was intended to reach a class of persons who associated with prostitutes as their equals, or who associated with them in public, and was not intended to make a vagrant of a person who, at night, went occasionally to the room of a woman of loose morals, and yet who at no other time was seen in her company. The word `habitually' has a definite and fixed meaning in law, and in saying `habitually associated with prostitutes' it was intended to reach a class of persons who made a habit of associating with them, either in public or private, and going to their room occasionally at night, even though it was for an immoral purpose, would not bring one within the definition of this offense." Now, the State's case is, they had seen him about the house of Miss Bell Pence's, a house of prostitution, and the State's evidence goes to show perhaps he had been seen a time or two in her bed, though this is practically denied by inmates of the house, Alice and Vera Gordon. They say they were in the habit of sleeping with Miss Bell. Appellant, under the State's view of the case, was at this place on several occasions and ate breakfast they say. We are of opinion under the decision in the Ellis case, supra, this is not sufficient. Under that authority the judgment is reversed and the cause is remanded.
Reversed and remanded.
ON REHEARING. February 4, 1914.