The appellant'was prosecuted by information, under the Code, on a charge of keeping a disorderly .house. On the trial in the County Court the jury returned a verdict of guilty, and assessed against the accused a fine of $100, upon which a judgment was rendered in accordance with the verdict, and ordering her to be kept in close custody until the fine and costs should be fully paid; and then proceeded to adjudge, in addition, as follows :
“ And it further appearing to the court that the keeping of said disorderly house, as set forth in the information in *571this cause, dated March 31, 1877, by said Evaline Brooks, is an offense in its nature continuous, it is ordered by the court that the keeping of said disorderly house by the said Evaline Brooks abate and be suppressed, and that the sheriff of Parker County, Texas, be, and he is hereby, directed and required to execute and carry into effect this judgment of suppression' of the keeping of said disorderly house by said Evaline Brooks. It is further ordered that execution issue.”
A motion was made for a new trial, which was overruled, and a motion was made in arrest of judgment. Among the grounds set out, and which require to be noticed, are the following :
■ “2. Because it is not charged in the information and complaint that the defendant kept the house as a common resort for prostitutes.
“3. Because it is not charged that prostitutes did congregate and resort at said house, nor were any facts constituting a disorderly house averred therein.
“5. Because no acts of prostitution are averred or shown in said information.
“ 7. Because there is no sufficient description of the house, by name, character of building, or locality.
“9. Because there is no verdict of the jury finding that the offense is continuous in its nature, or that it now exists.
“ 10. Because the court cannot, of itself, inquire what kind of an offense it is, or whether it is continuous or not, but must base its judgment upon the verdict of the jury.”
The motion in arrest of judgment was overruled, and this appeal is taken, the ruling being saved by bill of exceptions. The latter portion of the third error assigned is as follows: ‘ ‘ And especially did the court err in rendering judgment for the suppression of the house, without a verdict or charge that the same was a nuisance, and a finding to that effect.”
*572There is a class of cases of nuisance provided by the criminal law of this state in which, upon conviction, the court has authority to abate the nuisance, but the offense here charged does not belong to that class ; and, even if it did, that power could not be invoked unless it entered into the definition of the offense, and was charged with that view, and then only.upon the finding of a jury. The judgment in the present case is not warranted by the law, the punishment for the offense being fixed by statute at a pecuniary fine of “ not less than one hundred, nor more than one thousand dollars.” Penal Code, art. 398 (Pasc. Dig., art. 2029).
Again, the law provides that in criminal trials the jury, besides finding whether the accused is guilty or not guilty, shall, in addition thereto, “ assess the punishment, in all cases where the same is not absolutely fixed by law, to some particular penalty.” Code Cr. Proc., art. 626 (Pasc. Dig., art. 3091).
The court below erred in adding to its judgment that portion which orders the suppression of the supposed nuisance. We are of opinion the objections taken to the information are untenable; but, for the error in the judgment of the court as above set out, the judgment is reversed and the cause remanded.
Reversed and remanded.