Huffman v. State

5 S.W. 134, 23 Tex. Ct. App. 491, 1887 Tex. Crim. App. LEXIS 112

Opinion

Hurt, Judge.

This is a conviction for keeping a disorderly house. The indictment alleges that the house was kept from the first day of February, 1886, and on each day from that date up to the twenty-eighth day of February, 1886.

Though not directly passed upon by the courts of last resort in this State, the weight of authority is that this is a continuous offense, and that a conviction bars all further prosecutions up to the time of conviction. While this is the general rule, yet, to avoid this effect, it is well settled that if the indictment is drawn in the form in which this is drawn, and the evidence confined to the time thus carved out, a conviction will be no bar to prosecutions for keeping such house at other times not carved out by the indictment. By this character of pleading, the complicated and perplexing subject of continuous offenses is eliminated from the case. And, as the proof was confined to the time alleged, both in fact and in the charge of the court, the form of the indictment eliminates from the case the appellant’s plea of former conviction. (Vide Willson’s Forms.)

Opinion delivered June 8, 1887.

It was agreed between the parties that appellant should be tried upon her bond, and hence the judgment was rendered against the sureties as well as the appellant. In this there was error; wherefore the judgment against the sureties is reversed, and that against the appellant is affirmed.

Ordered accordingly.