On a former day of this term this case was reversed, but on a mature deliberation and study of the testimony we have arrived at the conclusion that if the testimony offered by the State should be believed to be true, it would support the verdict, and the rehearing should be granted, and the judgment affirmed.
Minnie Lee Jones testified: "I did live at Miss Bell Pence's until about a week ago, when I moved away. I am acquainted with the defendant, Lingenfelter. I have seen the defendant in the house there at night and in the morning. I have seen the defendant at breakfast at the table there quite a number of times. It was breakfast for us. It was between eleven and twelve o'clock. I lived at Bell's Pence's five or six weeks. I did not see defendant there every morning. I did see defendant there most of the mornings during that time. My testimony as given is confined to the time that I was staying at Bell Pence's. I *Page 190 do not know where defendant slept. I have seen defendant in Miss Bell's bed. I have heard defendant tell certain parties to make themselves at home. I do not know who these friends were. I understood that the defendant was working at the Saint Charles barbershop two or three weeks ago. I have seen the defendant with the book at Miss Bell's place, and defendant has told me what I owed. That was a day book. I have turned some money over to the defendant and some to Miss Bell. Miss Bell is a keeper of a house of prostitution, and girls board with her. The girls down there go to bed with men for money, and have sexual intercourse with them. The defendant would eat at the same table with the girls and with Miss Bell. I have seen them come to Miss Bell's room for the defendant's laundry."
Irene May testified she was a prostitute and lived in Bell Pence's house of prostitution for about five months; that she knew appellant, and saw him there nearly every night during the time she stayed there, and that he would go to Miss Pence's room; that she had seen appellant eat breakfast there.
Grace Thompson testified that she had lived at Bell Pence's and during the time she was there she saw defendant in this house frequently, and would see him there at night and at breakfast. That when she saw him he generally was in Miss Bell's room. Alice Gordon testified she went automobile riding with appellant, admitting she was a prostitute. Lee Huff testified that Bell Pence's house was a bawdy house, and he had seen appellant at this house and in different parts of the house. That he had seen him in the early morning before daylight, and also about 8 o'clock in the morning. C.P. Carlton said he had seen him down there undressed.
This was the testimony offered by the State to show that appellant habitually associated with prostitutes and habitually loitered in and around houses of prostitution, and we believe it would justify a jury in so finding.
We adhere to the holding announced in Ellis v. State,65 Tex. Crim. 480, 145 S.W. Rep., 339, but do not think the evidence brings this case within the rule there announced. He was not "a man who at night time went occasionally to the room of a woman of loose morals," but in this case it appears that he was sleeping in this house of prostitution; eating meals with the prostitutes and associating with them as his equal. He apparently was bookkeeper, and in one instance collected the money due the madam by the girls. It is true that Billy Smith testified that appellant rented a room at this house, and had his trunk there, but on cross-examination said he did not know where appellant slept, and would not say that he had ever slept in the room rented from him. Ed Fuller testified he had seen appellant at work in Saint Charles barbershop, but one of the owners of the barbershop testified appellant did not work there regularly, but worked extra and when he worked got 60 per cent of what he took in. But take all the evidence *Page 191 adduced on the trial, and we are of the opinion that the rehearing should be granted, and it is so ordered, and the case is now affirmed.
Affirmed.