This appeal is from a judgment condemning appellant to confinement in the penitentiary for ten years for the crime of pandering.
The State's case is supported in the main by a witness by the name of Jones and the wife of appellant.
On behalf of the State Mrs. Eppison testified that after a very short *Page 365 acquaintance she and appellant were married in June, 1916, and after living together for seventeen days a separation took place, and she left Texarkana, going to Paris, working in a confectionery store for her uncle. She claimed to have left her husband because he wanted her to lead an immoral life. After leaving him he wrote her letters seeking a reconciliation, and in October went to see her on the same mission. Encouraged by her mother to return to him, she went to Texarkana for that purpose, having received money sent her by her husband to pay her expenses. She reached Texarkana in the evening and was taken by her husband to the Mecca Rooms. Soon thereafter Charlie Jones was brought to see her by appellant, who insisted that she submit to Jones' embraces and complained because she refused to do so, and finally upon his urging she went to Jones' room but found him asleep. The house was kept by a woman named Mrs. Isonhauser. One other woman lived there, and this woman, Mrs. Eppison claimed, was a prostitute. After remaining at the Mecca Rooms for several days she and her husband went to another rooming house called the Como Rooms, which she claimed was a place of ill-fame, and at which her husband insisted upon her having intercourse with men. Remaining at the Como house about an hour, she left in company with Jones, went to a show and after the show to the Savoy Hotel, which was across the Texas line in Arkansas. She stayed at the Savoy Hotel one night at Jones' expense but without any improper relations with him. Afterward fell into the hands of Mr. Henry, a white slave officer. This substantially is her evidence.
Charlie Jones, a married man, forty-two years of age, claimed that he went to the Mecca Rooms at appellant's request, appellant stating that anything could be had, whether a crap game or a good looking woman, and that his wife was there and Jones could stay with her; that he saw Mrs. Eppison at the Mecca Rooms and asked her if she wanted to stay with him; told her she did not have to, and that she declined and said she did not want to lead that kind of life, and that he told her she did not have to do so, Eppison being absent at the time of this conversation; that a day or two later she met him at a restaurant and told him that appellant was going to take her to the Como rooming house, where she did not want to go, and asked his advice. Later he found her at the Como and took her to the Savoy Hotel, where he rented a room; took her to the picture show that night, gave her a small sum of money and told her he would send her to his wife at Kansas City; that she subsequently, after separating from her husband, went back to the Mecca Rooms and remained about two weeks, where he (Jones) paid for a room part of the time; that she left with a man named Arnold, and Mr. Henry, white slave officer, investigated the matter. He claimed that the Mecca Rooms had a bad reputation and that the woman Hagerman, who stayed there, was a prostitute, and that the Como Rooms was also a house of prostitution. After returning to the Mecca Roms she was visited several times by the white slave officer, and *Page 366 he made no protest against her remaining there. He said he had heard nothing of its ill-fame.
On cross-examination Mrs. Eppison testified that she had married a man named Ector when about fourteen years of age and had lived for about a year with a man named Wilson under the guise of husband and wife. That during this time she lived with Wilson at the house of a man named Harold Arnold in Titus County, also in Texarkana and Little Rock; that Wilson was a thief and a crook; that after Jones took her to the Savoy Hotel she left there with a barber by the name of Arnold.
On redirect examination the State proved by Mrs. Eppison that when she was a small child her father and mother were mean to her, beat and abused her, made life unpleasant for her, forced her to marry a half Indian when she was fourteen years of age. That her first husband was also cruel to her, beat and abused her and permitted other people to do so; that after living with him nine months she went off with Wilson. She was permitted to go into details of Wilson's treatment of her, which in substance shows that he forced her to have intercourse with him and that during the year she lived with him as man and wife she did so through fear of Wilson, who whipped her, beat her, placed a gun against her head and breast and threatened to shoot her. That she lived with him several months in Titus County, Texas, about three months in Texarkana and a short time in Little Rock, where he was arrested and sent to the penitentiary, she testifying as a witness against him.
There was a sharp issue of fact with reference to the reputation of the Mecca rooming house, it appearing that Mrs. Isonhauser had recently taken charge of it, she testifying that there was nothing wrong took place there during her occupancy. Most of the testimony with reference to its reputation related to a time antedating the time of Mrs. Isonhauser's tenancy. After she took charge none of the original roomers remained. Jones' testimony with reference to his conversation with appellant was denied by appellant and contradicted by another witness. This witness also claimed that Jones solicited Mrs. Eppison to accompany him to another room and that Jones had gone to the house on request of the Hagerman woman. Appellant claimed that he had been employed to solicit patronage for Mrs. Isonhauser's rooming house and that he had no knowledge of anything wrong there, and denied his wife's statements of his improper conduct toward her, claiming that he did not know the cause of her leaving; that he had written her mother and gone to see her, and that she came back to him at his solicitation, he sending her the money. A letter from Jones to Mrs. Eppison, written after she left her husband and while she was at the Mecca place, was identified and read in evidence, which is as follows:
"Dec. 14, 16.
"Dear Daughter: I am so surprised at the choice that you have taken, and so is Mr. Henry, but you know your mind best. After what I saw last night I went home thinking about you, but I will never say *Page 367 anything about what I saw to anyone. Believe me, my best wishes go to you. I never will get in that much trouble for anyone else again. I have lost my faith in anyone. You know and Mr. Henry knows my intentions were the best. As far as this man Pollard is concerned, I will meet him in Kansas City, Missouri, and hell will break loose. Please call me up before nine o'clock and I will say goodbye. From one that thinks more of you than anyone else does.
"Cas. A. Jones.
"The old lady wants you for a drawing card for her house, and you know it. Now if you find yourself slipping let me know. Please answer if you think anything of me, but destroy as soon as you see this letter. C."
Appellant objected to the details of her past life and they were admitted on the ground, as explained to the court, that in the cross-examination appellant had gone minutely into her life and refused to permit her to make an explanation.
Appellant's cross-examination of his wife appears to have been legitimate. There was ground for question of her relations with Jones and his intentions towards her and appellant. The incriminating evidence against appellant came from Jones and Mrs. Eppison. Their motives were proper subject of inquiry and the facts throwing light upon them were relevant. O'Neal v. State, 122 S.W. Rep., 386; Wigmore on Evidence, secs. 948 and 949; Wharton's Crim. Evidence, sec. 488.
The State's right to have Mrs. Eppison make legitimate explanation of circumstances developed on cross-examination tending to weaken her evidence can not be questioned. Branch's Ann. P.C., p. 62; Wigmore on Evidence, sec. 952. In the exercise of this privilege the State should not have gone into details so minute or transactions so remote. Proof was made of occurrences in the early life of the witness, of mistreatment by her father and mother, cruelty of her first husband, her betrayal and outrage by Wilson, and his subsequent restraint and abuse of her.
Appellant sought to postpone or continue the case to procure the testimony of Harold Arnold, who testified that during 1914 Mrs. Eppison lived at his house with Elmer Wilson, claiming to be his wife and going under the name of Cleo Wilson; that she did housework for witness and that Wilson was a laborer in his field; that she quit his employ after some months and resided with Wilson near the witness' house; that she and Wilson were very affectionate toward each other; that she was foolish over him; that she would follow him to the field almost every day, and that at no time did he notice any indication or evidence of duress on the part of Wilson. A bill of exceptions was reserved to the court's action in overruling this application for a continuance in the absence of this testimony and attached to the motion for a new trial is the uncontroverted affidavit of Arnold to its truth.
We think, in view of the testimony drawn out on the redirect examination of Mrs. Eppison and referred to above, that the testimony of *Page 368 Arnold was admissible not only to impeach Mrs. Eppison but to throw light upon her motives and corroborate the appellant in his denial of her statements. Bader v. State, 57 Tex. Crim. 293; Parker v. State, 62 Tex.Crim. Rep.; Wigmore on Evidence, sec. 1135.
Though there was lack of diligence shown in application for a continuance which justified the trial court in overruling it, it, with the affidavit supporting it, were proper factors to be considered on the motion for a new trial. Tull v. State, 55 S.W. Rep., 61; Stewart v. State, 52 Tex.Crim. Rep.; Cockerel v. State, 60 Tex.Crim. Rep.; Collins v. State, 148 S.W. Rep., 1065; Rushing v. State, 62 Tex.Crim. Rep.. And by this court in reviewing the action of the trial court in overruling such motion. Rumbo v. State, 28 Texas Crim. App., 30; Clark v. State, 30 Texas Crim. App., 377; Walker v. State, 32 Tex. Crim. 175; Logan v. State, 39 Tex.Crim. Rep.; Hardin v. State, 40 Tex.Crim. Rep.; Lopez v. State, 52 Tex. Crim. 226; Pressley v. State, 60 Tex.Crim. Rep.; Branch's Ann. P.C., sec. 338.
The State proved by Mrs. Eppison that her relations with Wilson were brought about by brute force and continued by violence and threats. By the testimony of the absent witness was shown that she lived with Wilson for months without complaint and that she had opportunity to disclose the outrage and free herself from restraint.
On hearing the motion for new trial the court had before it the knowledge of Arnold's testimony; the fact that the main witness against appellant was a young woman who had had many episodes with men, and at the time occupied questionable relations with the chief corroborating witness — Jones; the fact that a serious verdict against appellant had been rendered in a case where this young woman had been permitted to recite a touching story, relating a series of wrongs committed against her by others than appellant, in his absence and without his participation or knowledge.
In the light of this record we think a new trial should have been granted.
The court in his main charge submitted the case to the jury in the following language: "Now, if you believe from the evidence beyond a reasonable doubt, that the defendant, in the County of Bowie and State of Texas, on or about the 2nd day of December, 1916, as alleged, did then and there unlawfully by abuse of his position of confidence and authority, towit: as a husband, procure a female person, towit: Bertie Eppison, to enter a place there situate in which said place prostitution was then and there encouraged or allowed, you will find him guilty of pandering as charged in the indictment, and assess his punishment at confinement in the penitentiary for any term of years not less than five." Appellant requested the following charge: "You are charged that the State is bound to show beyond a reasonable doubt that the place where Bertie Eppison was taken was a place where prostitution was allowed and encouraged, and if you have a reasonable doubt as to *Page 369 this house being a place where prostitution was allowed or encouraged, then you will find the defendant not guilty and so say by your verdict."
The refusal of this charge, we think, was error. The submission of the question was put by the State's standpoint in an affirmative way. A house of prostitution was defined but the charge fails to submit the issue from the standpoint of appellant. One of his defenses was that he did not take his wife to a place where prostitution was encouraged and allowed and the character of the house to which he took her was sharply in issue. In response to the well known rule that it is incumbent upon the court, upon request, to submit to the jury appellant's theory raised by the evidence, the requested charge should have been given.
For the errors in denying the motion for a new trial and refusing special charge mentioned, the judgment of the lower court should be reversed and the cause remanded. The other assignments do not present error.
Reversed and remanded.