When the decision herein was originally handed down I noted the fact that I could not agree to the affirmance. Motion for rehearing was overruled in an opinion by Judge Prendergast.
The information charges appellant, in the first count, with keeping and being concerned in keeping a bawdy house, and as a house kept for the purpose of prostitution, and as a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation. The second count charges appellant did unlawfully keep and was concerned in keeping a disorderly house, the said house then and there being a house, room and place where men and women met by mutual appointment, and by appointment made by another for the purpose of sexual intercourse. The court in his charge submitted the case to the jury on the theory that if they should believe that men and women met by mutual appointment, and by appointment made by another, at said house, for the purpose of sexual intercourse, they would find appellant guilty. He further charged that under the first count the jury could not convict and withdrew that from their consideration. So the second count, or the one which charges appellant with keeping a place where men and women met by mutual appointment, or by appointment made by another for the purpose of sexual intercourse, was the count submitted.
I might perhaps take the statement made by the opinions, original and on rehearing, as sufficient, but in addition to what was said I desire to add this: One of the parties who says he met the girls at appellant's residence was named McPhael. He says: "Mr. Spradley made the arrangements with Mrs. Hearne, at which time I was present. At the time Spradley and I went up to this place, Mrs. Hearne was sitting in the door at the bottom of the stairway, and Spradley said Mary and Ethel said we could get rooms; we are looking for rooms; so she told us to come on upstairs; so we went on upstairs, and in a few minutes she came up and showed us the rooms we could take, and in a few minutes later, say ten or fifteen, the girls came up; if I remember just right, they came up from the backway. I paid Mrs. Hearne $2 for the room, and I suppose Spradley paid her the same amount. We were up there with the girls before the officers came, hardly a half hour. The officers who came were Mr. Bass, Mr. Poole, Dr. Hudson and Mr. Gelney. For a few minutes there we were all in the same room; Mrs. Hearne was in there too; she came and collected the room rent." This witness testified he was a deputy United States marshal at the time, and later became a policeman in the city of Houston. He says: "I met those girls and went up to that place, No. 807 1/2 San Jacinto Street, at the instance and request of Mr. Spradley; he asked me to go. I knew that Mr. Spradley was a police officer, and I at that time was a deputy United States marshal. I thought said house that I and Mr. Spradley and the girls were visiting was an assignation house. When Mr. Spradley and I went up to this house I thought the girls were taking us up there. I wasn't *Page 402 roped in to going up there, but I did not make any suggestion about going up there. Mr. Spradley suggested going out and having a good time." Spradley testified he was a member of the police department of Houston, and "was working in the humane department and in connection with rooming houses and places like that." He said he went to the place in question and asked for Mrs. Hearne, and had a conversation at the door with her. "McPhael was with me. We walked up there and we spoke to her and we asked her if we could get a room, and she asked us who was with us and I told her these girls' names, Mary and Ethel." This witness says he was an officer of the law, but did not arrest Mrs. Hearne. He says he may have known she was violating the law, but he would not arrest her until he got a warrant. This witness testified further that he met these girls on Main Street, and McPhael came to where he was talking with them and they made arrangements there with the girls to go out that night. During the conversation it was suggested that Mrs. Hearne's would be a place to go. That he went from the place of the conversation to make arrangements with Mrs. Hearne for a meeting with the girls and paid her four dollars. McPhael testified that he paid his part of it himself with two dollars. In addition to what is said in the two opinions of my brethren I think this will be sufficient.
The statute provides that an assignation house is a house, room or place where men and women meet by mutual appointment, or by appointment made by another for the purpose of sexual intercourse, whether at such place vinous, spirituous or malt liquors are kept for sale or are used or not. Another provision of the Act of 1907, p. 246, is that, "It shell be unlawfu for any person to invite, solicit, procure, allure or use any means for the purpose of alluring or procuring any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person, or to take part, or in any way participate in any immoral conduct with men or women, or to use at such place any intoxicating liquors, or to give to any person the name and address, or either, or photograph of any female for the purpose of enabling the person to whom such name, address or photograph of such female is given and furnished to meet and have unlawful sexual intercourse, or to bring about or procure such unlawful sexual intercourse with such female by any other person. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than two hundred dollars, and in addition thereto shall be confined in the county jail not less than one nor more than six months." So it will be observed that these two officers, Spradley and McPhael made arrangements with these two girls, if their testimony be true, to go with them to a rendezvous, and they say it was agreed that Mrs. Hearne's place would be a fitting establishment. Spradley says that he met the girls, introduced McPhael, and made arrangements for himself and McPhael to meet these two girls, to which arrangement McPhael readily agreed, and they were going out "to have a good time." They testified *Page 403 they went and secured two rooms at Mrs. Hearne's house. They further testified they were in the rooms with these girls when the officers came, and that the door was locked a sufficient length of time for them to dress and get themselves together, and get in another room altogether, and they were in there when the officers came up. So the officers who came up did not see them in a private room. Mrs. Hearne denies that there was anything indicating an assignation. The girls were not used as witnesses. The record does show they were arrested but discharged by the order of the chief of police, and were not prosecuted. Under the statute just quoted it would hardly be questionable, if Spradley and McPhael had been prosecuted under the article read and convicted, that this court would have affirmed the judgment, if their testimony is true. They induced Mrs. Hearne by the payment of money to let them have two rooms as they testified, and so far as this record is concerned this is the only assignation, if this be one, that had occurred in that house. The officers testified that they had watched the house, but this is the first time they had any facts; at least it is the first time any arrest occurred. On one or two occasions there is some evidence that a man and woman had been seen to go to and go away from this place. There is evidence that she was keeping a boarding or rooming house, and the officers never thought sufficiently of this matter even to undertake to arrest anybody. So if this be an assignation house, it is made so by the fact that Spradley and McPhael and these two girls met at this house on this occasion. If that be sufficient evidence to make this an assignation house, and both Spradley and McPhael testified they did not have intercourse with the girls, but simply went there, then that meeting was brought about by Spradley and McPhael renting the rooms of that house and inducing appellant to constitute it an assignation house. There could not have been an assignation at that place without their contrivance and at their instigation, as shown by their evidence and at their request, and was not, and there is no evidence in the record to show otherwise. Then if this was an assignation house, it was made so under this record by this one evening's performance brought about by Spradley and McPhael inviting these two girls to go there and their subsequent meeting at that point, and inducing appellant to let them have the rooms for that purpose. Those girls were there by the procurement and mutual agreement with Spradley and McPhael under the testimony of those two men. They invited these girls there; Spradley induced McPhael to go with him. He solicited the girls to go with him and McPhael; and the assignation, if one was made in fact, was made at their instigation, and Mrs. Hearne was induced to rent two rooms to them. If this does not make them accomplices, then it would be difficult to understand what character of testimony it would take to make accomplices. They induced Mrs. Hearne to assign them to two rooms, and the evidence shows this is the only instance in which the thing ever occurred there, and by that means it was made an assignation house, if it was one at all, and these are all the facts that show there was ever any assignation in the house. *Page 404 Then Spradley was guilty under article 359a, Acts of 1907, p. 246, of inviting and soliciting and procuring these girls to go there, one of them to go with himself and the other with McPhael. McPhael agreed and went. They were both guilty under article 359a of violating the law in inducing these girls to go there, and inviting them there for the purpose of prostitution. They had induced Mrs. Hearne to assign them these rooms. In the case of Dever v. State, 37 Tex.Crim. Rep., Judge Hurt lays down the rule there that where a party persuades and invites others to enter into the commission of an offense, without even intending really to be a participant, or with the intent to secure their arrest, punishment and the probable reward, is guilty as a principal, if the offense be completed, for, when a person does a prohibited act, with the intent the law forbids, it will not avail him that he also intended ultimate good. If, by his acts and conduct, he encouraged, advised or persuaded others to commit the crime, he would himself be guilty regardless of whether he intended to consummate the crime or not. In that case Judge Hurt distinguished the rule laid down in Woodworth v. State, 20 Texas Crim. App., 375, from the rule announced in the Dever's case. The distinction is readily perceivable and the margin wide between them. Where an officer, understanding that a crime is to be consummated, or is in course of being brought about and carried out, and he falls in line as a detective, he would not be a principal or an accessory, or a guilty participant, because the crime has already been put into operation in part or in whole; but where he is in the inception of the crime, and helps to bring that crime about and assists in it in order that he may arrest, as he says, the parties, he is a guilty participant, and his official character is no protection against the act. That rule is thoroughly settled. No officer has a right to violate the law on the theory that he claims he is doing it for ultimate good. An officer is to suppress crime and not organize crime in order that he may punish somebody. We had occasion to go over this matter again in Bush v. State, 68 Tex.Crim. Rep., 151 S.W. Rep., 554. This language was used: "Wherever a party deliberately or intentionally originates or succeeds in bringing about a violation of the law, he becomes a particeps criminis of that violation, and therefore when used as a witness must be corroborated. There is a line of cases which holds that where an officer or other parties understand or are 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 parties may be punished, he would not be an accomplice, but in such cases 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. There is another line of cases which holds that, where the party originates the crime or is instrumental in its initiation and brings it about, he then becomes a particeps criminis and when testifying *Page 405 as a witness in the case is an accomplice. The leading cases in this State are Dever v. State, 37 Tex.Crim. Rep., 30 S.W. Rep., 1071; Steele v. State, 19 Texas Crim. App., 425. The opinion in the Dever case was by Judge Hurt and draws the distinction above mentioned between parties who were playing the role of detective for the arrest and punishment of parties, and those who originate the crime or assist in originating it in the first instance." The propositions here announced in the Bush and the Dever cases have been recognized as correct. If these authorities are correct then under the facts detailed by these two witnesses, Spradley and McPhael, they are accomplices. This crime could not have been brought about and was not brought about, nor even instigated, except at the hands of and by Spradley and McPhael. By their act this was made an assignation house at the time, if it was such at all, and how it could have been made such without their concurrence, this record does not indicate. The trial judge recognized the fact that Spradley was an accomplice, and so charged the jury. He recognized that McPhael was an accomplice, but submitted the fact to the jury. McPhael was equally an accomplice under the law with Spradley. He was associated with Spradley from the beginning to the end of it. It is true that Spradley first solicited one of the girls to go with McPhael, and then called McPhael and he assented to it. From that time on McPhael was heart and soul, under his testimony, co-operating. He paid his money for a room. If Spradley and McPhael are accomplices, then the evidence in this case is not sufficient. They are not corroborated as to their purpose of being at the house. They are corroborated as to the fact that they were there in a room with the other parties at the time the officers came, but there is nothing to indicate that anything was being done that was wrong. Mrs. Hearne was not arrested at the time, and the girls who were subsequently arrested were discharged. Mrs. Hearne denies practically there was anything indicative of an assignation; that she was not carrying on an assignation house; that she had rooms there for lodgers and parties who wanted to rent rooms; that she was trying to make a living to support her invalid son and his wife and child, and was raising her fifteen or sixteen-year-old daughter who was there in the house with her. So this case could not be affirmed on the facts if Spradley and McPhael are accomplices for want of necessary corroboration showing that Mrs. Hearne was keeping an assignation house, and inasmuch as this is the only instance shown in the history of the house of any assignation meeting, it was necessary to make this case clear enough and strong enough to authorize a conviction. This was not done so far as the corroboration of McPhael and Spradley is concerned. Take their testimony out of the case and there is not sufficient evidence to indicate that there was any assignation at the time or that this was an assignation house.
There is another question in the case that I think my brethren erroneously decide. The bill is quoted as follows: "Upon the trial of the above styled and numbered cause the district attorney, making his *Page 406 opening argument to the jury, stated as follows: `Gentlemen of the jury: Look at the defendant. Look at the large diamonds in her ears, and other diamonds she wears. Don't you know that every glitter from them denotes a lost soul?' To which statement counsel for the defendant then and there in open court objected and submitted a written request to the court requesting the court to instruct the jury not to consider the statement above made by the district attorney. The court refused said request, and in refusing said request stated to counsel for defendant in the presence of the jury that the State had a right to make that kind of comment, and that the jury has a right to consider the jewelry, wearing apparel and general appearance of all the witnesses in the case. To which action of the court in not instructing the jury to disregard the statement objected to of the district attorney, and also to the statement of the court in telling the jury that they had a right to consider the jewelry, wearing apparel and appearances of all the witnesses, defendant then and there objected and tenders this his bill of exception," etc. This bill is signed without qualification. My brethren, passing upon this matter, say: "It, like each of appellant's other bills, is too meager and wholly insufficient to require consideration. (James v. State, 63 Tex.Crim. Rep.; Conger v. State, 63 Tex.Crim. Rep..) This bill complains of this language of the assistant district attorney in his opening argument." Then the opinion says: "The bill in no way discloses under what circumstances or surroundings this remark of the attorney was made. If we look to the record to complete the bill, or to make it intelligible, — even if that could be done, — it would show that appellant herself testified on the stand. Without doubt the jury did look at her and observed her whole conduct, demeanor and dress and could not possibly have avoided seeing her large diamonds which she wore, if she wore any. The bill in no way discloses that she did not wear diamonds on this occasion. The district attorney's question, `Don't you know that every glitter from them denotes a lost soul?' was a mere flight of oratory, or poetic question." It may have been a flight of oratory or poetic question, but as Judge Prendergast says, if we look to the statement of facts we would absolutely fail to find any word or indication in it anywhere that appellant wore any diamonds or owned any diamonds. This was a flighty statement of the district attorney which should not have been indulged, and it passed far out into the fields of poesy, but the district attorney ought not to be permitted to go out in his fugitive exploitations into poetic fields and state things that were not in evidence. I should hardly imagine the district attorney would have offered to impeach appellant's testimony by proving the fact that she may have worn diamond ear-rings or jewelry of any sort. Before a district attorney, or a prosecuting officer is permitted to comment on matters of this sort, there ought to be some fact in the record that would justify it. In fact, the flight of oratory out into poetic fields must have been finely drawn when the district attorney could see the glitter of lost souls reflected in the diamonds, and if these were images thrown back from their glitter, it *Page 407 must have been at the time and place of the reflection, towit: the trial. The reflection of the images of lost souls were those who were then in such position as to be shown in the reflection. However this may be and however much the prosecuting officer was inclined to indulge in fugitive flights of poetry, it was not legitimate as a means of bringing about a criminal conviction and on facts that were not before the jury. He would not have been so permitted to testify, and there was no evidence before the jury of the matters that he discussed in this poetic flight. I can not agree that this sort of argument should be permitted. If a defendant can not be convicted upon the testimony and the presumption of innocence overcome by facts, it ought not to be done by illegitimate argument, even if it has to clip the wings of poetic and fugitive flights of oratory. Appellant is entitled to a fair trial on the facts, and the argument should be confined to the facts. Convictions should be based on proved facts and not on absence of evidence. In the opinion of Judge Prendergast the argument of the district attorney only is alluded to. The remark of the court justifying the remarks of the district attorney is not mentioned. I am of the opinion that the remark of the trial judge should not have been indulged. He was but emphasizing the wrong committed by the district attorney, and as one of our opinions says, the jury is somewhat prone to look upon the "trial judge as the Lord's anointed."
For the above reasons I respectfully dissent.