On Motion for Rehearing.
MORROW, P. J.,Upon the authority of Riley v. State, 58 Tex. Cr. R. 176, 125 S. W. 582, and Nichols v. State, 75 Tex. Cr. R. 67, 170 S. W. 304, appellant insists that in receiving testimony touching the lewd conduct of the appellant at the house in question, there was error committed.,
In the present case, there is much evidence that the house in question, was frequented by prostitutes, and was used by them in pursuing their vocation. It is believed that under such circumstances the receipt of evidence showing the lewd conduct of the accused at the house was not improperly received. Her knowledge of the character of the house was the subject of proof by either direct or circumstantial evidence. If she was the only inmate, the fact that she plied her vocation as a prostitute would not be sufficient under the statute to establish the character of the house; nevertheless, if she and other inmates of the house could .be shown, by circumstances or otherwise, to be common prostitutes plying their vocation, it seems to us incompatible with the rules of evidence and the precedents that evidence of her acts would be inadmissible. In our own state, the decision of the exact question has not come to our attention unless the -majority opinions in the Nichols Case, supra, are so interpreted. In other states, however, there are numerous instances where the ruling has been in accord with that of the trial court in the present case and of this court on appeal. See State v. Olds, 217 Mo. 305, 116 S. W. 1080; Harwood v. People, 26 N. Y. 190, 84 Am. Dec. 175; Jones v. State, 10 Okl. Cr. 79, 133 P. 1134. Analogous cases are Forbes v. State, 35 Tex. Cr. R. 24, 29 S. W. 784; Farris v. State, 74 Tex. Cr. R. 607, 170 S. W. 310; Key v. State, 71 Tex. Cr. R. 485, 160 S. W. 354; Hickman v. State, 59 Tex. Cr. R. 89, 126 S. W. 1149; Graeter v. State, 105 Ind. 271, 4 N. E. 461; State v. Wells, 46 Iowa, 662. The Texas case of Nichols, supra, is a little difficult to analyze owing to the fact that there were three opinions. However, if we understand the case, the majority held that the evidence that the woman who was accused of committing the offense had been seen in compromising positions with men in the house was properly received.
The motion for rehearing is overruled.