Appellant has filed a motion for rehearing and, as a part thereof, a 17-page typewritten brief and argument. In addition to this, he has filed another 28-page typewritten argument and brief. He earnestly and vigorously contends that the evidence in this case is wholly insufficient to sustain the verdict. This is the only question we will discuss. We did not discuss this in the original opinion, deeming it wholly unnecessary.
Preliminary to stating the evidence and in connection with the discussion thereof, we will first discuss and determine whether the witnesses Spradley and McPhael were accomplices. The court in his charge stated that Spradley was, and submitted to the jury whether or not McPhael was, and required, in a proper charge, Spradley's testimony to be corroborated and if the jury believed that McPhael was that his testimoney *Page 395 should also be corroborated before they could convict appellant on the testimony of either or both of them. The court gave a correct charge on the subject if it had been called for and it is in no way attacked by appellant.
The uncontradicted testimony shows that Spradley was a member of the police department of Houston on the date this offense is alleged to have been committed and for some time prior thereto and that his work in said department was to look up rooming houses, and make search for keepers of bawdy and assignation houses in the city and that in the discharge of his duty he made an engagement with the two girls, Ethel and Mary, for him and McPhael to meet these girls at appellant's house that night for the purpose of sexual intercourse with them and that he did meet them there ostensibly for that purpose. On cross-examination, at appellant's instance, he testified: "It is a fact that my sole purpose in going up to said house was in order to get evidence against this house so that I could testify against Mrs. Hearne." That he paid $4 for the room rent for himself, Spradley and the two girls that night and that the city, — the chief of police, paid him back later the $4. The evidence in no way would show or tend to show that McPhael was an accomplice in any way to the crime charged against Mrs. Hearne; he knew nothing about Mrs. Hearne's place or house, was a stranger to the two girls and introduced to them by Spradley immediately after which they made arrangements with the two girls to go to Mrs. Hearne's, and he did meet them there and himself prepared to have sexual intercourse with one of them. Neither of these witnesses are shown in any way to have been interested, directly or indirectly, with Mrs. Hearne in connection with the house she was running other or further than the mere fact that they went there to meet these two girls, the girls themselves suggesting this place to them, to have sexual intercourse. Bear in mind the offense with which Mrs. Hearne was charged! It was that she unlawfully kept and was concerned in keeping a disorderly house, — an assignation house.
What we said in Minter v. State, 70 Tex.Crim. Rep., 159 S.W. Rep., 300, is exactly applicable here. We quote it:
"The question of who is an accomplice and what it takes to make an accomplice is not always kept clear by our decisions. The cases are frequently indiscriminately cited on this subject. In speaking of accomplices and in treating of it in this case, we do it in its broadest sense; that is, to include principals, accomplices as such, and accessories.
"There are two rules on this subject as clear and distinct as can be. One is: An accomplice is a person who, knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime.
"The other is tersely stated by this court in Bush v. State,68 Tex. Crim. 299, 151 S.W. Rep., 554, in substance: Where an officer or other party understands or is led to believe that a violation of the law is in contemplation, and takes steps to detect that crime, or get evidence by which the guilty party may be punished, he would not be an accomplice. *Page 396 In such case he is not an original party to the bringing about the crime and is not guilty of originating or initiating it. In that character of case his connection with it is after the inception of the crime and after it has been determined upon, and he only then gets into it as a detective or for the purpose of arresting the party and bringing him to punishment.
"In the case of Allison v. State, 14 Texas Crim. App., 122, this court, through Presiding Judge White, said: `From the evidence before us it does not appear that the witness Massey was an accomplice. He had been informed by defendant of his (defendant's) intention to steal Justice's horse, and he immediately told Justice's sons, and Justice himself subsequently, of defendant's intention. It is true that Justice and Massey arranged that Justice should have his horse at a certain place, doubtless with a view that they might capture defendant in the very act of committing the theft, and it is inferable that there was a further understanding between the parties that Massey was to accompany the defendant to the place and at the time when the theft was to be committed, ostensibly as his confederate, but in fact that he might aid in his arrest after the crime was consummated. Had this agreement been carried out, and the horse stolen at the time, place, and under these circumstances mentioned, Massey, in law, would not have been an accomplice in the theft. Pigg v. State, 43 Tex. 108 [43 Tex. 108]; Johnson v. State, 3 Texas Crim. App., 590. But this agreement was not carried out, and the horse was stolen on another occasion and in a different place. Instead of being an accomplice, it appears to us from the evidence that Massey acted throughout the part of a law-abiding citizen, who, knowing that a crime was about to be committed, did, or was willing to do, all in his power to prevent it or bring its perpetrator to punishment. There was no occasion for the court to charge the law with regard to accomplice testimony in this case.'
"In Chitister v. State, 33 Tex.Crim. Rep., 28 S.W. Rep., 683, Presiding Judge Davidson, in discussing whether or not a witness in that case was an accomplice, for the court, said: `That he (the witness) induced appellant to give him property to secure his departure from the State in order to be rid of his testimony did not, of itself, constitute the witness Crowley an accessory. In order to render the witness an accessory, he must have concealed the accused or given him some aid so that he may have evaded an arrest or trial, or the execution of his sentence. Penal Code, art. 86. This was not done; the witness did accept the property, and also agreed to leave the State. He, however, did not leave the State, and it is shown that he sought the bribe as a means of securing testimony for the purpose of convicting appellant for the theft of the animal set out in the indictment. He was active in the prosecution of the case, and testified in behalf of the State on the trial. This evidence did not require a charge upon the law applicable to accomplice testimony, and the court did not err in failing to so charge.'
"In Wharton's Crim. Ev., vol. 1, in section 440 (10th ed.), he says: *Page 397 `An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. . . . There are certain relations recognized by the law, in which the voluntary co-operation of a person with the accused does not render such person an accomplice. Thus, those who co-operate with a view to aid justice by detecting a crime, such as accepting money with which to purchase intoxicating liquors to obtain evidence of a violation of the law, for the purpose of prosecuting the seller for an unlawful sale, is not an accomplice; nor is an informer technically an accomplice; nor a detective who joins a criminal organization for the purpose of exposing it, even though, to aid such exposure, he unites in and apparently approves its counsels; nor the agent who purchases a libelous publication for the purpose of giving evidence against the publisher; nor a disguised emissary who, by purporting to be a friend of the parties suspected, seeks to draw from them inculpatory information.'
"In 4 Ency. of Ev., p. 630, the law on this subject is thus stated: `The fact that a detective in securing evidence of a crime is the instrument or means through which the law is violated does not make him an accomplice within the rule requiring the testimony of accomplices to be corroborated. Thus one who purchases liquor sold in violation of law for the purpose of securing the conviction of the offender is not an accomplice, nor is one who receives a counterfeit, or stolen goods, or buys a lottery ticket, or participates in a gambling game for the same purpose. So, also, one who pretends to be an accomplice, and apparently assists in the preparations for a crime with the purpose and intention of frustrating the design of the guilty parties and securing their punishment is not an accomplice whose testimony requires corroboration, even though he actually takes an apparent part in the commission of the offense.'
"In the recent work of Mr. Underhill (2nd ed.), on Crim. Ev., in sec. 69, he says: `A person who, as a detective, associates with criminals or communicates with or aids them solely for the purpose of discovering commission of crime, and procuring the punishment of the criminals, is not an accomplice.'
"In 12 Cyc., p. 447, the rule is thus laid down: `One who, as a detective, associates with criminals solely for the purpose of discovering and making known their crimes and who acts throughout with this purpose, and without any criminal intent, is not an accomplice, and it is immaterial that he encourages or aids in the commission of the crime.'" Holmes v. State, 70 Tex. Crim. 423, 156 S.W. Rep., 1172; Ausbrook v. State, 70 Tex. Crim. 272, 156 S.W. Rep., 1177.
The evidence in no possible way suggests or intimates that Spradley or McPhael, either or both of them, were in any way, directly or indirectly, aiding or abetting Mrs. Hearne in the keeping of this house for assignation purposes or any other purpose. The whole of what either of them did was at the suggestion of these girls, to take advantage of the fact that Mrs. Hearne was keeping and running such a house and that they went there at the most, to meet these girls for illicit intercourse. *Page 398 In no way thereby did they become participants in the keeping of said house by Mrs. Hearne.
The court should not have charged that Spradley was an accomplice, nor submitted whether or not McPhael was, for neither of them were. However, this was to appellant's advantage and not her disadvantage and she can not complain thereof. So that we treat the evidence of each of these witnesses as the testimony of any other, and the court below should have done so. Even if they were accomplices, they were amply corroborated.
Brushing the question of these witnesses and neither of them being accomplices, aside, or even considering them as accomplices, we then proceed to show what the testimony was. We do not give the appellant's testimony, because in testing whether or not the evidence is sufficient, we look only to the inculpatory evidence to ascertain, as a matter of law, whether that is sufficient or not. It may be that the testimony of an accused may be sufficient to justify an acquittal. This court has nothing to do with that. This is a question for the jury, and the jury having passed on it and believed the inculpatory testimony, this court can only pass upon whether it was sufficient to justify their verdict.
Some of the witnesses expressly testified that Mrs. Hearne told them she was the keeper of that house. She was, in fact, there that night and had charge of it. By her own testimony she had lived there continuously for more than six months at this time. In Stokeley v. State, 37 Tex.Crim. Rep., Judge Hurt, for this court, held that where a man permitted one woman, for less than a half of a night, to occupy his residence and have intercourse with men, he was guilty of keeping a disorderly house. This court in Flynn v. State, 35 Tex.Crim. Rep.; Stone v. State, 47 Tex.Crim. Rep., and Willis v. State,34 Tex. Crim. 148, in effect, expressly held that where one person owns the property and another has possession, charge or control of the same, the latter is, under the statute, the owner, so far as being the keeper, etc., is concerned. There can be no question from this testimony and the law that Mrs. Hearne was the keeper, in contemplation of the statute and the law, of this house at the time.
Did she keep it is an assignation house? Mr. Barden, the owner of the house, testified that at the time this offense is charged, the part kept by Mrs. Hearne was reputed to be an assignation or whorehouse. Mr. Mills, the owner of property in the immediate neighborhood of this house, testified that its general reputation was that it was used as an assignation house and had been known as such for more than a year before the date of this offense. Mr. Bass, a police officer, whose duty it was to locate assignation houses and do such like work, and who watched these parties and saw that they went to Mrs. Hearne's house that night and afterwards participated in their arrest, testified that the two said girls, Ethel and Mary, had bad reputations for visiting houses of assignation. Mr. Sisk, who was also a special police officer, testified that on and prior to August 30th, the date said offense is charged, he *Page 399 knew the general reputation of said place and that it was that of an assignation house; that he watched the place for awhile and saw a young woman and man stop on the corner; the man went across up to this house, came back, got the young woman and that both together went up there; that after remaining awhile they came down. Mr. Poole, another police officer, whose duty was looking after such houses, testified that he had heard the house talked about as being an assignation or whorehouse and from that talk said house was an assignation house; that he had watched that place and had seen different persons go into and come out of it; that sometimes he had seen as high as four or five doing this covering a period of an hour's time only; that sometimes a man would go and sometimes a woman would go alone, and then sometimes they would go up there in couples, — men and women. On cross-examination he said that he had known the reputation of the house for several months, five or six, before this offense was charged and that he knew the reputation of said house was that of an assignation house and had known it for these five or six months.
Without naming the witnesses, because we deem it unnecessary, the testimony of the State then clearly and distinctly shows that Spradley met and was introduced to these two girls, Ethel and Mary, by another girl on this night on the streets of Houston; that he stopped and was talking to them. While talking to them McPhael was passing and he called him and introduced him to these girls; that the two men then made arrangements with these two girls to meet them somewhere that night and have sexual intercourse with them. Upon inquiring from the girls as to where they should go, the two girls suggested that they go to Mrs. Hearne's. The men didn't seem to know where this was. The girls said they would go with them and point out the house to them. The girls told these two men to see Mrs. Hearne, tell her that Mary and Ethel sent them there, and to engage rooms and that they would themselves soon come. Spradley and McPhael proceeded to see Mrs. Hearne. They found her sitting on the stairway, delivered their message from Ethel and Mary, and Mrs. Hearne invited them up and they went up. She took them to two rooms; she supplied towels for them; she told them to go in one room and undress and that when the girls came she would take them in the other room and they would undress and that one of the men could go in the room where the girls undressed and one of the girls go in the room where the men then were. This was all carried out under her suggestion and instructions. There was a door between the two rooms. Before the girls arrived, however, they telephoned to Mrs. Hearne, told her that they were afraid to come up to her house to the two men; that they thought officers were watching them, but Mrs. Hearne insisted upon their coming anyhow; they thereupon proceeded to meander around from block to block and street to street, seeking to elude the officers, or have the officers abandon watching them. Mrs. Hearne told them to come up the backway and gave them directions about how to get up that way. The backway to her premises was a circuitous or elusive *Page 400 way, and led through an alley or part of an alley, and probably through an old vacant house. Anyway it was not in view from the street and access to her house that way seemed an ideal one for persons of that character to reach it and depart from it and not be detected. When the girls came she took them to their room. They immediately proceeded to undress. As soon as they did, one of the girls went to McPhael's room and lay down on the bed ready for business. McPhael proceeded to undress and himself was almost ready for business. Spradley went to the other room to the other girl. She had undressed and had sat down on the bed undressed. Spradley was more leisurely in undressing. He thought the officers had been watching and was anticipating a raid by the officers and was delaying undressing on that account. Spradley paid Mrs. Hearne $4 for the use of the two rooms for business. Each of the girls demanded of the men $5 apiece. Each promised to pay when they got ready for business. Bass, the officer, had seen Spradley and McPhael with these girls and saw their maneuvers, marching around the town when the girls were showing Mrs. Hearne's house to them. He saw the parties separate and the men go, he presumed, to Mrs. Hearne's. He then continued watching the girls. They marched around first one block or street and then another, and when they thought they had given Bass the slip they proceeded to carry out their engagement with these men and slipped up the backway to Mrs. Hearne's. When the parties were in the attitude above described, — the two women undressed and ready for business, — McPhael about so, and Spradley delaying. Mrs. Hearne had again gone partly down the back stairway, doubtless either watching for the officers or for other customers. Bass, in the meantime had communicated to headquarters and the chief of police detailed three other officers to raid this house and arrest these parties. They proceeded to do so, and when they got in sight of Mrs. Hearne, approaching the stairway where she was, she hastily retreated upstairs, locked the door and alarmed these men and these girls, directing the girls to dress as quickly as possible and to come in the room with her and her daughter and be visitors when the officers came in. She told the men to dress as quickly as possible and go in another room where another man was and to be there playing cards and appear as room renters. Her instructions were carried out by both the girls and the men. The officers were ringing the bell, knocking, seeking admittance. She cut off the bell so it wouldn't ring and after giving ample time for the men and girls to carry out her instructions and the girls to be in her room as guests and the men to be in the other room as roomers playing cards, she graciously then, and not until then, opened the door and let the officers in. They proceeded to arrest all the occupants, — men and women, — and carried them to police headquarters.
After carefully again reviewing the evidence we repeat what we said in the original opinion: "The evidence is sufficient to show appellant's guilt, clearly, fully, completely and satisfactorily."
The motion for rehearing is overruled. Overruled. *Page 401