In his motion appellant urges that we erred in not sustaining the contention in his bill of exceptions No. 2 wherein he complained because the court did not submit to the jury the question of whether the defendant had *Page 187 knowledge of the alleged unlawful acts occurring at the hotel. Appellant refers us to the case of Despos v. State,8 S.W.2d 126, contending that same is authority in support of his contention. Inspection of that case makes plain that appellant misapprehends same. Art. 514 of our Penal Code penalizes him who shall keep or be concerned in keeping, or aid or assist or abet, in keeping a bawdy or disorderly house, etc., or who shall knowingly permit the keeping of a bawdy or disorderly house in any house, building, edifice, owned, leased, occupied or controlled by him. It is not necessary to prove the proposition of knowingly permitting the keeping, etc., unless that be the allegation in the indictment in the case on trial, — which is not the fact in the instant case. Appellant was charged with keeping a bawdy house. In the case of Lowry v. State, 96 Tex.Crim. Rep., the distinction is drawn and the proper rule announced. Examination of the opinion of Judge Christian in the Despos case, supra, makes plain its lack of application to the case before us. The other matters contained in appellant's motion have been considered, and it is not deemed necessary to discuss same.
The motion for rehearing is overruled.
Overruled.
MORROW, P. J., absent.
APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.