OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for public lewdness as denounced by V.T.C.A., Penal Code, Section 21.07. After a jury returned a verdict of guilty, the trial judge assessed appellant’s punishment at ten days’ confinement in the county jail, probated for one year, and a four hundred dollar fine.
Appellant contends that the trial judge: (1) failed to properly instruct the jury to properly apply the culpable mental state of the offense; (2) failed to apply the law to the facts in the charge to the jury; (3) admitted evidence obtained in violation of appellant’s rights under the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution; (4) failed to give appellant’s requested instruction pertaining to whether certain evidence had been illegally obtained; (5) failed to give appellant’s requested instruction pertaining to whether appellant’s conduct occurred in a public place; (6) failed to give appellant’s requested instruction on whether appellant knew he was in a public place; (7) failed to give appellant’s requested instruction on mistake of fact; (8) failed to give appellant’s requested instruction pertaining to whether appellant’s conduct occurred in the common area of a shop; (9) erroneously excluded defensive evidence; and (10) failed to instruct a verdict of not guilty. We overrule these contentions and affirm.
On January 18, 1977, at approximately 12:00 a. m., Sergeants Belvin, Miller, Huck-abee, Polk and Ray of the Austin Police Department, and Alcoholic Beverage Commission Agent Bacak, all of whom were in plain clothes, met at Mr. Peeper’s Book Store at 213 East 6th Street in Austin.
The first section of Mr. Peeper’s was a typical newsstand. The second section contained soft and hard core pornographic magazines, paraphernalia, films, and a sales counter. The third section, comprising the rear portion of the building, consisted of nineteen booths, hallways and a restroom. The booths contained coin-operated viewers which, when activated by the insertion of a quarter, played portions of movies depicting various sexual acts. These booths were all approximately six and one-half feet tall, although their internal dimensions varied. Entry into each booth was through a full length, nontransparent curtain. Some of the booths had red light bulbs on top of them which were designed to go on when the viewer inside the booth was activated. The lighting in the third section of Mr. Peeper’s was dim and loud music was piped in through a stereo system.
[581]*581There were between fifteen and thirty-five people going into and coming out of the booths.
Sergeant Belvin saw a man, later identified as Mark Edmund Webb, enter booth No. 18. Shortly thereafter, he saw another man, later identified as the appellant, go into the same booth. Belvin motioned to Sergeants Miller and Ray and they approached Belvin who told them that two people were in the booth. Appellant came out, looked up and down the hallway and reentered the booth.
Miller and Ray then stood near the booth and each looked into it through a three to five-inch gap between the curtain and the edge of the booth. The booth was illuminated by “black lights” and the viewer in the booth had been activated. Miller saw appellant fondle Webb, unzip Webb’s pants, remove his penis, and masturbate him. He then saw appellant put his head in Webb’s crotch area. Ray also saw appellant’s head in Webb’s crotch area.
Miller, followed by Ray, then entered the booth and Miller, while holding his Austin Police Department badge in one hand and a flashlight in his other hand, announced that appellant and Webb were under arrest. At that time Miller observed Webb’s penis in the appellant’s mouth and saw Webb moving his hips back and forth, while Ray heard appellant sucking on Webb’s penis.
Appellant and Webb were led outside by Miller and Ray. Appellant then escaped. After a chase for several blocks and through several floors in the Stephen F. Austin Hotel, the appellant was apprehended by Miller and Officer Kohler of the Austin Police Department. Kohler testified that appellant’s breath “smelled like soured milk or perhaps ammonia or urine.”
The appellant contends, in substance, that the court erred in failing to charge that before finding him guilty the jury must find that he knew he was in a public place and knowingly engaged in deviate sexual intercourse. The court instructed the jurors that if they believed beyond a reasonable doubt that appellant “. . .did then and there in a public place, to-wit: Mr. Peeper’s Book Store, a shop open to the public . . . knowingly engaged in deviate sexual intercourse . . . you will find the defendant guilty. . . . ”
V.T.C.A., Penal Code, Section 21.07(a)(2), provides in part as follows:
“(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
U * * *
“(2) an act of deviate sexual intercourse;”
Reading Section 21.07 as a whole, sexual deviate intercourse is illegal if it is knowingly done and if it was in a public place. The same act would be a crime in a private place if recklessly done. If the conduct reveals that those involved are reckless about whether another is present who would be offended or alarmed by that act, it is recklessly done. See Brown v. State, 558 S.W.2d 471 (Tex.Cr.App.1977).
We hold that knowingly as used in the statute applies only to the act of deviate sexual intercourse and not to the place where such act was committed.
The appellant’s second contention is that the trial judge failed to apply the law to the facts in the charge to the jury and thereby commented on the weight of the evidence. The portion of the charge complained of is as follows:
“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the Defendant, Billy Ray Green, on or about the 18th day of January, 1977, in the County of Travis, and State of Texas, as alleged in the information, did then and there in a public place, to-wit: Mr. Peeper’s Book Store, a shop open to the public at 213 East 6th Street, Austin, Travis County, Texas, knowingly engaged in deviate sexual intercourse in that Billy Ray Green placed his mouth on the genitals of Mark Edmund Webb, you will find the [582]*582Defendant guilty of the offense of public lewdness and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the Defendant and say by your verdict ‘Not Guilty.’ ”
He contends that the court erred in its charge by commenting on the weight of the evidence by not limiting the jury’s determination of whether appellant’s conduct occurred in a public place — booth No. 18. He also requested a charge for the jury to determine if the booth was a public place.
The court instructed the jurors that if they believed beyond a reasonable doubt that appellant “as alleged in the information, did then and there in a public place, to-wit: Mr. Peeper’s Book Store engaged in deviate sexual intercourse . . . ” to find him guilty.
We hold that the charge was not a comment on the weight of the evidence. It required the jury to find him guilty only if they found that he committed the act as alleged. The judge did not assume any facts to be true. We also hold that the court did not err in refusing to limit the definition of a public place to booth No. 18. The information alleged in part that “Billy Ray Green did then and there in a public place, to-wit: Mr. Peeper’s Book Store, a shop open to the public . . . knowingly engage in deviate sexual intercourse.” All of the evidence shows that Mr. Peeper’s Book Store was a public place. There was no evidence that the act was committed outside of the shop. The booth was open to anyone. All one had to do was draw the curtain to enter the booth. If one wanted to watch part of a moving picture, he could put a coin into the machine. Appellant testified that he looked into other booths and saw people in them. The store was open to the public, that is the way it was supposed to make a profit. Later in this opinion we hold that appellant had no right to expect privacy in the booth. Under all of the evidence the booth was part of a public place.
V.T.C.A., Penal Code, Section 1.07(a)(29), defines “public place” as “any place” to which the public or a substantial group of the public has access.
In Loden v. State, 561 S.W.2d 2 (Tex.Cr.App.1978), the defendant’s probation was revoked on the ground that he appeared in a public place under the influence of alcohol to the degree that he endangered himself or others. He was arrested by an officer in the Sundance Saloon. He contended that there was no evidence to show that it was a public place. The Court noted that, although no witness testified the Sundance Saloon was a public place, the evidence showed that it was open for business on the night in question.
The proof shows that Mr. Peeper’s was open for business on the night in question.
Appellant contends that the trial judge admitted evidence which was seized in violation of his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution. He argues that the testimony of Officers Miller and Ray relating to what they had seen through the crack between the curtain and the edge of the booth was the result of an unconstitutional search and seizure.
The basic purpose of the Fourth Amendment and Article 1, Section 9 is to safeguard the privacy of individuals from arbitrary invasions by governmental intrusions. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976). Thus, the Fourth Amendment and Article 1, Section 9, protect people and not places. As we stated in Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975),
“What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973). A search means, of necessity, a quest for, a looking for, or a seeking out of that which offends against the law. This implies a prying into hidden places for that which is concealed. It is [583]*583simply not a search to observe that which is open to view. Turner v. State, supra; Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944).”
In Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971), we were confronted with whether the defendant had a reasonable expectation of privacy in two different toilet stalls located in two different public restrooms. One of the restrooms was located inside a Sears store while the other was located in a public park. The toilet stall at the Sears store had doors which locked from the inside. The toilet stall in the public park had no doors and was visible to all in the general restroom area. Although police officers had viewed the defendant’s illegal sex acts in both stalls from concealed positions above the toilet stalls, we held there that the defendant’s expectation of privacy was not reasonable where no doors were provided for the stalls. There is quite a difference in one’s expectation of privacy when he goes into a stall in a restroom with a door closed from the expectation of privacy in a peep show stall with the curtain open.
In Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973), an officer observed illegal activity through a window that apparently had no blinds or curtains on it. We held there that no search had occurred and stated:
“[t]hat it is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement the Fourth Amendment itself draws the blinds the occupant could have drawn but did not.” Id. at 185.
See also Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975).
In George v. State, 509 S.W.2d 347 (Tex.Cr.App.1974), an officer, standing eighteen inches from a fence surrounding the defendant’s property looked through cracks and knotholes in the fence and observed marihuana plants growing. We held there that the officer’s conduct in looking through the fence was not unreasonable.
In the present case, Miller and Ray had a legal right to be in the hallway outside the booth. A three to five-inch gap between the curtain and the edge of the booth enabled the officers to view appellant’s conduct. We hold that the officers’ conduct did not constitute a search. Appellant testified that he walked down the hallway and opened curtains and that people were in the booths. In two of the booths homosexual activity was taking place. He also testified that the red light on top of the booth in question was not working. When on it was to show when the booth was occupied. We also hold that appellant, under the facts of this case, waived any expectation of the right to privacy. Appellant’s contention is overruled.
Appellant’s fourth contention is that the trial judge erred by refusing to charge the jury in accordance with appellant’s requested instructions No. 7 and No. 11. Both of these requested instructions dealt with appellant’s expectation of privacy and were submitted under the authority of Article 38.23, V.A.C.C.P., which states:
“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
“In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”
Article 38.23, supra, is applicable only when an issue of fact is created by evidence of probable cause. Merriweather v. State, 501 S.W.2d 887 (Tex.Cr.App.1973); McElwee v. State, 493 S.W.2d 876 (Tex.Cr.App.1973). Since we have held that the conduct of Miller and Ray did not constitute a search, it is clear that the trial judge properly refused appellant’s requested instructions No. 7 and No. 11.
[584]*584Appellant’s fifth contention is that the trial judge erred by refusing to charge the jury in accordance with appellant’s requested instruction No. 2, which states:
“If you find from the evidence, or if you have a reasonable doubt thereof, that booth No. 18 in Mr. Peeper’s Book Store at 213 E. 6th Street, as shown by the evidence, was not a “Public Place” as that term has been defined herein, then you shall acquit the Defendant and say by your verdict ‘Not Guilty.’ ”
When any defensive theory is raised by the evidence, the trial judge must charge the jury on that defensive theory. The denial of a defendant’s requested instruction is not error where the requested instruction is merely an affirmative submission of a defensive issue which merely denies the existence of an essential element of the State’s case. Bearden v. State, 487 S.W.2d 739 (Tex.Cr.App.1972); Kirkland v. State, 162 Tex.Cr.R. 424, 285 S.W.2d 743 (1955); Gilmore v. State, 158 Tex.Cr.R. 534, 257 S.W.2d 300 (1953). For this reason, the judge in this case properly refused to give the requested instruction.
The sixth ground of error is that the trial judge erred by failing to charge the jury in accordance with appellant’s requested instruction No. 4, which states:
“You are instructed that before you can convict the Defendant of knowingly committing an act of deviate sexual intercourse in a public place as alleged in the information, you must find and believe from the evidence beyond a reasonable doubt that at the very time he engaged in the act of deviate sexual intercourse, if you have found beyond a reasonable doubt that he did, he knew he was in a public place as that term has been defined herein, and if you have a reasonable doubt that the Defendant had knowledge that he was in a public place then you will acquit the Defendant and say by your verdict ‘Not Guilty.’ ”
We have previously overruled appellant’s initial ground of error in which he contended that the culpable mental state — knowingly — applies to the public place requirement of Y.T.C.A., Penal Code, Section 21.07. We therefore conclude that no error is shown.
The seventh ground of error is that the judge erred by failing to charge the jury in accordance with appellant’s requested instruction No. 6, which dealt with the defense of mistake of fact.
V.T.C.A., Penal Code, Section 8.02, states:
“(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required by commission of the offense.
“(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.”
The defense of mistake of fact is a defense only if “his mistaken belief negated the kind of culpability required for commission of the offense” and only where that mistake has led to a reasonable belief concerning that fact. Appellant contends that there was evidence that he was reasonably mistaken as to whether the booth was a public place. However, we have previously overruled appellant’s initial ground of error in which he contended knowingly is a part of the public place requirement of V.T.C.A., Penal Code, Section 21.07. Even if appellant did form, through mistake, a belief that the booth was not a public place, such mistake of fact could not be a defense since there is no requirement that a defendant know that the location where the act was performed was a public place.
In the eighth ground of error it is contended that the judge erred in failing to charge the jury in accordance with appellant’s requested instruction that the jury must find he was in the common area of Mr. Peeper’s shop before finding him guilty.
The judge’s charge contained an instruction which included “ . . . Mr. Peeper’s Book Store, a shop open to the public. . . ” This tracked the allegations in the information.
[585]*585Appellant contends that the reference to “shop,” plus the evidence adduced at trial, created a fact issue which justified appellant’s requested instruction No. 5.
V.T.C.A., Penal Code, Section 1.07(a)(29), supra, defines public place to mean any place to which the public or a substantial group of the public has access, and then sets forth a non-exhaustive list of examples of what constitutes a public place. Common areas of shops constitute but one example of a public place. Other areas of shops which are not “common areas” could be public places. Thus, an accused could be convicted of public lewdness even if the illegal act was performed in a “shop” but the exact location of the act was not in a “common” area of that “shop.” Therefore, appellant’s requested instruction was properly denied. Cf. Mutscher v. State, 514 S.W.2d 905, 926 (Tex.Cr.App.1974).
The ninth contention concerns the trial judge’s exclusion of defensive testimony. Specifically, appellant contends that certain portions of his own testimony as well as certain portions of the testimony of Paul Bankston and Marsha Head should not have been excluded by the trial judge.
He argues that the defensive evidence tended to establish that the lighting in the third section of Mr. Peeper’s was so dim that, given the floor plan of booth No. 18, it would have been impossible for Miller and Ray to have seen any activity in the booth. Furthermore, the music was of such a volume that no “sucking noises”, as testified to by Ray, could have been heard.
The defense then sought to prove some type of conspiracy against appellant, who at the time of his arrest was the District Attorney in the Third Judicial District of Texas. Appellant testified before the jury that he became an Assistant County Attorney for Anderson County in June, 1974. He was, at that time, assistant to County Attorney Bill House who had been appointed to fill an unexpired term. In September, 1974, House fired appellant. At the time appellant was fired, he related that he was engaged in an investigation of “narcotic payoffs” within the Palestine Police Department. Appellant had approached House about the matter, and when House responded that he did not want to know anything about it, appellant discussed the matter with Mr. Handorf, then District Attorney for the Third Judicial District in Anderson County, and Mr. Whitaker, then District Attorney for the 173rd Judicial District in Anderson County. According to appellant, the Federal Bureau of Investigation was apprised of the matter. Immediately thereafter, appellant was fired without any reason or justification.
Appellant ran as a write-in candidate against House for County Attorney in November, 1974. Appellant won the election and immediately advised House that, due to House’s noncompliance with the election laws, House would have to resign immediately. House resigned and appellant became County Attorney in November, 1974.
Appellant’s term as County Attorney ended on December 31, 1976. Prior to the expiration of his term, appellant decided to run for District Attorney of the Third Judicial District. He ran against the incumbent District Attorney Richard Handorf in November, 1976. Handorf’s campaign was handled by one Danny Parish, who was allegedly assisted by Michael O’Brian, District Attorney Handorf’s sole criminal investigator. Handorf’s campaign allegedly involved “smear” tactics, including the dissemination of rumors that appellant had been arrested for driving while intoxicated on two occasions, and posters, containing “mug” shots from the Palestine Police Department’s files depicting appellant as a “nigger hater.” Appellant won the election but thereafter was under the belief that O’Brian had him under surveillance. Appellant wanted to testify before the jury that O’Brian told him that he was under surveillance.
Appellant then testified before the jury about his activity on January 17 and 18, 1977. Appellant drove to Austin on January 17, 1977, to order stationery for his office. He also related that in December, 1976, Kenneth Berry, the Chief of Police in Palestine, had brought him an eight-track [586]*586tape to ascertain whether appellant, as County Attorney for Anderson County which included Palestine, could determine if the tape was obscene. On January 11,1977, appellant and Berry had another conversation pertaining to obscenity and the local community standards in Palestine. Due to these conversations, he decided to investigate the obscenity standards while he was in Austin.
Therefore, at approximately 10:30 p. m., on January 17, 1977, he left an apartment in Austin and went to the “All American Newsstand” on Guadalupe Street. He looked at soft and hard core pornographic magazines and viewed one “peep show.” At approximately 11:30 p. m., appellant went to Mr. Peeper’s, which he had noticed earlier during the day. He looked at the soft and hard core pornographic literature in the second section of Mr. Peeper’s and then went into the third or “peep show” section of Mr. Peeper’s. He viewed a number of different films and went into approximately six different booths. In some of the booths he encountered people, and some of these people were engaged in various sexual acts.
He saw a sign outside the booth in question which read: “Protect your rights; when you insert 25 cents, you’re renting this space.” When he went into the booth, the red light bulb on top of the booth was not on. However, once inside the booth he encountered Mark Webb, whom he had never previously met. The movie then in progress stopped and appellant bent over to insert a quarter into the viewer. At that time, Miller and Ray entered the booth and arrested him and Webb. Appellant testified that he could not see Miller’s badge and that he thought he was “getting taken for a ride.” He denied that he had engaged in any illegal activity while in the booth.
Appellant also introduced evidence before the jury that after his arrest Texas Ranger Bob Prince, who was stationed in Palestine, obtained copies of offense reports prepared by members of the Austin Police Department and distributed copies to the Judge of the Third Judicial District in Palestine, Chief Berry of the Palestine Police Department, and Prince’s chief in Waco. Furthermore, copies of the offense reports were found on the desk of the Judge of the 87th Judicial District and in the parking lot of the Calhoun Packing Company in Palestine.
As set out above, the defensive evidence was voluminous. He attempted to show that he had not engaged in any illegal conduct in the booth and that Richard Han-dorf, Danny Parish, Michael O’Brian and others had conspired to “get” him due to his successful bid for District Attorney in the 1976 election.
Appellant testified that posters had been disseminated during the 1976 Democratic Primary. These posters contained, among other things, “mug” shots of two men, one white and one black, whom appellant had prosecuted during his tenure as County Attorney. The posters attempted to show that appellant was prejudiced against blacks. He also testified that the “mug” shots had been given to Mike O’Brian by Sergeant Yarbor of the Palestine Police Department. When he attempted to testify about two alleged conversations with O’Brian, the prosecutor objected on the ground that the testimony would be hearsay. The court sustained the objection.
He then made an offer of proof that O’Brian told him that he had gotten the “mug” shots used on the posters and that he had delivered the “mug” shots to one of Danny Parish’s employees. Appellant also testified outside the presence of the jury that after the election O’Brian told appellant that he was going to “ruin” appellant and that he had the appellant under surveillance. Appellant then testified to facts which tended to support his defensive theory that even during his trial he was under surveillance by “certain law enforcement authorities.” The appellant stayed with a friend and did not tell anyone where he was going to spend the night. However, he was located at his friend’s residence at approximately 11:30 p. m. by Texas Ranger Run-dell, who served appellant with a subpoena.
The State explained that this friend of appellant’s was the one he called after he [587]*587was arrested on the night of the offense and the officers knew who he had called,
Appellant also called Marsha Head, wife of Representative Fred Head of the 14th Legislative District, to testify. Mrs. Head attempted to testify to a conversation she had with Danny Parish immediately prior to the 1976 Democratic Primary, but the trial judge excluded the conversation as hearsay. Appellant made an offer of proof which tended to show that Parish was involved in the preparation and dissemination of posters immediately prior to the 1976 Democratic Primary. Neither O’Brian nor Parish was called to testify.
Appellant also called Paul Bankston to testify about conversations he had with Danny Parish prior to the 1976 Democratic Primary. When the judge excluded the testimony concerning the conversations, an offer of proof of Bankston’s testimony was made outside the presence of the jury. According to Bankston, Parish came to Bank-ston’s store in Malakoff a week prior to the election and asked Bankston what percentage of Malakoff was populated with blacks and which sections of Henderson County were most heavily populated with blacks. When Bankston asked why Parish wanted to know that information, Parish responded that he was handling Mr. Handorf’s campaign.
Apparently appellant is contending that this conspiracy to “get him” was entered into by the officers who arrested him. The Austin officers testified before the jury that they did not know and had not heard of appellant prior to his arrest. Ranger Prince, who was stationed in the Palestine area, testified that he was in Austin on other business and he did not know that appellant was in Austin on the date of the offense.
Irrelevant proof of threats made during a political campaign could have had no legitimate bearing on this trial. The officers testified that they did not know appellant and had no dealings with him directly or indirectly. Apparently appellant’s conspiracy theory would be that he did not commit the deviate sexual intercourse and that the officers framed him and committed perjury to convict him.
Ranger Prince’s presence in Austin on the day in question does not tend to prove a conspiracy. Agent Bacak had worked in a large area of East Texas before being transferred to Austin; this fact does not tend to support a conspiracy.
The court permitted appellant an opportunity outside the presence of the jury to show bias and to discredit the officers. Since he could show no conspiracy, the offered evidence was excluded.
In Timmins v. State, 82 Tex.Cr.R. 263, 199 S.W. 1106, 1108, an attempt was made to introduce hearsay testimony to show that a prosecutor offered to dismiss an action against Reese, a witness, if he would testify against Timmins. This Court held that any agreement on the subject would have been proper to use to impeach Reese but that the necessary predicate was not laid by inquiry of Reese with reference to any agreement with the district attorney. In the present case the State proved there was no agreement or conspiracy. Appellant did not cross-examine the officers who testified against him about any conspiracy. He did not call O’Brian or Parish to lay the basis for proving a conspiracy. See 87 A.L.R.2d, Discrediting Witnesses, Section 7, Texas Rule, page 426, where it is written:
“It has generally been held or expressly recognized that a foundation must be laid for independent evidence of an adverse witness’ bias or prejudice where such evidence is based upon the witness’ statements or utterances. Nite v. State (1899) 41 Tex.Crim. 340, 54 S.W. 763; Burnaman v. State (1913) 70 Tex.Crim. 361, 159 S.W. 244, 46 LRA,NS, 1001; Echols v. State (1914) 75 Tex.Crim. 369, 170 S.W. 786, overruled on other grounds in Hall v. State (1928) 111 Tex.Crim. 381, 12 S.W.2d 1024; Timmins v. State (1917) 82 Tex.Crim. 263, 199 S.W. 1106; Bell v. State (1919) 85 Tex.Crim. 475, 213 S.W. 647; Hennington v. State (1924) 101 Tex.Crim. 12, 274 S.W. 599; Lanhan [Lanham] v. State (1925) 99 Tex.Crim. 410, 269 S.W. 799; Hopper v. State (1925) 102 Tex.Crim. 313, 277 S.W. 636.”
[588]*588Cf. Cockrell v. State, 60 Tex.Cr.R. 124, 131 S.W. 221 (1910), a ease apparently to the contrary.
The rule is comparable to the one for impeaching- a witness with a prior inconsistent statement. To lay a proper predicate for impeachment the witnesses should be asked about any agreement or conspiracy before there is an attempt to prove one.
Hearsay is inadmissible for impeachment purposes. See Taylor v. State, 160 Tex.Cr.R. 124, 267 S.W.2d 828 (1954); Adams v. State, 110 Tex.Cr.R. 20, 7 S.W.2d 528, 530. Appellant’s purpose was to impeach the witnesses. Hearsay evidence has no more probative value for impeachment purposes than it does in proving the facts of a case. In the present case, if we accepted the offered hearsay testimony as true, it still does not show a conspiracy.
If the evidence were held to be proper in this case, imagine a defendant who has had many bitter political campaigns. All of the testimony about people out to get him in those campaigns could be aired before the jury. Such evidence would seldom be relevant. It would prolong trials for no purpose at all. See Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978).
The final contention is that the trial judge erred by refusing to grant the motion for an instructed verdict on the ground that there was a fatal variance between the information and the proof. He contends that since the information alleged that the offense was committed in “a shop” there should have been evidence that Mr. Peeper’s was a shop.
There was sufficient evidence for the jury to have concluded that Mr. Peeper's was a shop. No witness referred to Mr. Peeper’s as a shop, but the evidence shows that the place was open for business. Items were for sale. It was referred to as a store. Cf. Baughman v. State, 49 Tex.Cr.R. 33, 90 S.W. 166 (1905), and Jones v. State, 81 Tex.Cr.R. 230, 194 S.W. 1109 (1917).
The evidence supports the verdict and the court did not err by refusing to grant the motion for an instructed verdict.
There being no reversible error, the judgment is affirmed.
VOLLERS, J., not participating.