bills of exception, unless they state sufficient facts to enable it to determine without going through the statement of facts as to whether or not error has been committed. This has been the universal holding of this court since its organization. We have carefully examined the evidence in the case, and it is our conclusion that it is wholly sufficient to warrant the jury in saying that the appellant was guilty of the offense of transporting liquor in violation of the law. Finding no error in the record, it is our opinion that the judgment should in all things be affirmed. PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. April CLAIBORNE v. STATE. (No. 8249.) (Court of Criminal Appeals of Texas. 22, 1925. Rehearing Denied June 10, 1925.) 1. Criminal law 202(1)-One may be convicted of running a bawdyhouse in June and of vagrancy committed in August following. As transactions are not identical in point of time, one may be convicted of running a bawdyhouse in June and of vagrancy committed in August following. 2. Criminal law 295-Defendant has burden to identify former conviction as same transaction for which he is about to be tried. Burden is on defendant to identify former conviction as being the same transaction for which he is again about to be tried. 3. Disorderly house 13-Conviction sustained if either of conjunctives of statute was correctly charged and proved; "bawdy house." Where, under statute, "bawdyhouse" is one kept for prostitution, or where prostitutes are permitted to resort "for the purpose plying" their vocation, mere fact that information attempted to charge each of these things conjunctively did not make it necessary to sustain conviction or validity of information for each conjunctive thing to be correctly charged; it being sufficient if either of them was correctly charged and proved, hence omission of word "of" between "purpose" and "plying" was not fatal to conviction for operating bawdyhouse, [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Bawdy House.] 4. Disorderly house 16-Evidence as to lewd conduct of defendant, and her being drunk in house in question, held admissible. In prosecution for keeping bawdyhouse, evidence as to lewd conduct of defendant, and that she and others were seen drunk at house in question, was admissible. BERRY, J. Appellant was convicted in the county court of Wichita county for the offense of operating a bawdyhouse, and her punishment assessed at a fine of $200 and 20 days in jail. [1] Appellant's first complaint is as to the action of the court in overruling what is termed her "plea in abatement." This pleading was nothing more nor less than a plea of former conviction. Appellant was convicted on the second count in an information which charged her with occupying, controlling, and keeping a bawdyhouse in Wichita county, on or about the 30th day of June, A. D. 1923, and the testimony introduced in support of this charge shows conclusively that all the facts testified to concerning it occurred within two years prior to that time. The record also shows that on the 27th day of August, 1923, appellant was charged in the justice court of Wichita county with the offense of vagrancy, alleged to have been committed on or about the 27th day of August, 1923, and that she pleaded guilty to said offense and paid a fine as punishment therefor. [2] The burden is on the defendant to identify the former conviction as being the same transaction for which she is again about to be tried. Campbell v. State, 2 Tex. App. 187; Taylor v. State, 4 Tex. App. 29; Creech v. State, 70 Tex. Cr. R. 229, 158 S. W. 277. We know of no authority that holds that a party may not be convicted for running a bawdyhouse in June and for vagrancy committed in the following August. The transactions are not at all identical in point of time, and appellant's assignment raising this matter is therefore overruled. [3] By bill of exception No. 2, appellant complains of the insufficiency of the count in the information on which she was convicted. Said count charges that "She did unlawfully occupy and control and keep and was then and there concerned in keeping and did then and there aid and assist and abet in keeping a bawdyhouse there situate; the said house being then and there a house kept for prostitution, and being then and there a house where prostitutes were then and there permitted to resort and reside for the purpose plying their vocation." The exact complaint is that the word “of” is left out between the words "purpose" (273 S.W.) and "plying." Appellant cites many author- | ined by the Judges of the Court of Criminal ities which show that the court may not Appeals and approved by the court. supply a necessary word in an indictment, and, were this word necessary to charge an offense in this case, the authorities would be in point. The statute under which the information was filed, however, provides that a bawdyhouse is one kept for prostitution, or where prostitutes are permitted to resort or reside for the purpose of plying their vocation, and the mere fact that the information attempts to charge each of these things conjunctively does not make it necessary, to sustain a conviction or the validity of the information, for each conjunctive thing to be correctly charged; but if either of them is correctly charged, and the one correctly charged is proved, this will be sufficient. The state having alleged that the appellant kept a bawdyhouse for prostitution, and the evidence sustaining this charge, this is held to be sufficient. Tompkins v. State, 4 Tex. App. 161; Schulze v. State (Tex. Cr. App.) 56 S. W. 918; Cabiness v. State (Tex. Cr. App.) 146 S. W. 934; Billing v. State (Tex. Cr. App.) 271 S. W. 607, not yet [officially] reported. [4] By various bills of exceptions appellant complains of the action of the court in permitting witnesses to testify to lewd conduct on the part of defendant at her home, and to the effect that she and others were seen drunk at the house in question. Mr. Branch correctly states the rule with reference to this character of testimony as fol lows: "Proof of acts showing conduct. of and conversations had with the inmates of the house is admissible to show the character of the place, whether the accused was present or not when such matters occurred." It has also been held that the state may prove that the defendant sold beer at such house, and proof has also been held to be admissible that beer was kept and drunk at the house in question, when any of these things tend to show the character of the house. The testimony complained of was clearly admissible. See page 609, Branch's Penal Code, for a collation of authorities on this question. We have considered each of the appellant's assignments, and, finding no error therein, it is our opinion that the judgment should be affirmed. PER CURIAM. The foregoing opinion of the Commission of Appeals has been exam 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. BOHANNON v. STATE. (No. 9006.) (Court of Criminal Appeals of Texas. May 6, 1925. Rehearing Denied June 10, 1925.) 1. Criminal law 1088(11)-Exceptions, not signed by attorney or trial judge, cannot be considered. Exceptions to court's charge, which are not signed by attorneys for accused nor by trial judge, cannot be considered. 2. Criminal law 772 (6)-Affirmative defense must be presented in affirmative charge. Where accused presents an affirmative defense, it is duty of court to present that defense in an affirmative charge. 3. Criminal law 814(8, 9)-Affirmative defense not shown so as to require affirmative charge. In prosecution for negligent homicide, mere testimony of accused that he saw a Ford with one fender bent and broken light near scene of accident, leading to mere suspicion that another could have caused the injury, held not to sufficiently present an affirmative defense to require an affirmative charge, in view of charges given. 4. Homicide 178(1)—Admission by another, that he might have killed deceased, properly excluded.. In prosecution for negligent homicide, testimony that another admitted he was drunk and might have run over deceased, held properly excluded, in absence of showing that third party was in such proximity to offense at time it was committed as would make it reasonably probable that he might have been guilty. Commissioners' Decision. Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge. O. D. Bohannon was convicted of negligent homicide, and he appeals. Affirmed. Mays, Chaney & Dailey, of Dallas, for appellant. Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State. BERRY, J. Appellant was convicted in the district court of Dallas county for the offense of negligent homicide, and his punishment assessed at imprisonment in the county jail for a period of six months. [1-3] The record shows that the exceptions to the court's charge are not signed by the attorneys for appellant and are not signed by the trial judge, and hence cannot be considered. By bill No. 1 appellant complains of the action of the court in failing to give the following special charge: "As a part of the law applicable to this cause, you are charged that if you find and believe from the evidence, or if you have a reasonable doubt thereof, that the person testi fied to by defendant which he met after the accident in the Ford automobile with one fender bent and one light broken out of said car if you do so find, killed or caused the death of said George Judy then you will acquit the defendant and so say by your verdict." It is, and has always been, the rule in this state that if a defendant presents an affirmative defense it is the duty of the trial court to present this defense in an affirmative charge. Appellant seeks to invoke this rule in this case. The difficulty about it is that the facts do not bring the instant case within the rule. Appellant offered no affirmative defense. If there had been testimony in the record from appellant or from any of his witnesses that a party in a Ford automobile, with one fender bent and one light broken out, had killed the deceased, then an entirely different question might have been presented; but no such evidence is found in the record. On the contrary, no person other than the appellant saw any party in a Ford automobile as above described at or near the scene of the homicide, and appellant expressly states that he did not see any one run into or strike the deceased, and his testimony with reference to the stranger in the Ford automobile, with the bent fender and broken light, goes no further than to say that he met such a person coming from the direction of where the killing occurred on the highway. At best his testimony does no more than detail suspicion that another person could have caused the injury. In our opinion, this does not furnish that character of affirmative defense that calls for an affirmative charge presenting it. Under this record, every right that appellant had in this matter was fully protected by the court's charge on circumstantial evidence, and by the following paragraph of his charge: "Although you may find and believe beyond a reasonable doubt that at the time and place alleged in the indictment the child, George Judy, was struck and killed by an automobile, and that the person driving said automobile did recklessly, negligently, and carelessly strike and kill George Judy, yet, before you can convict the defendant, you must further find and believe from the evidence beyond a reasonable doubt that the defendant, O. D. Bohannon, was the driver of said car, and unless you do so find and believe beyond a reasonable doubt, you will acquit the defendant." [4] Appellant next complains of the action of the court in excluding the testimony of Mrs. Cora Parson. By this witness appellant offered to prove that she knew Alfred Goodwin, and that she recalled the accident which happened out on the Orphans' Home road involved in this case, and that she had a talk with Alfred Goodwin about the case, and that he told her that he had an accident out there, but did not know whether he hit (273 S.W.) the child or not, because he was drinking; that he said he did not know whether he hit the child or not, that he was there at the accident at the time, that the law was after him, and that he was going to leave town. Appellant sought to introduce this testimony under the theory that the accused may show by any legitimate evidence that he was not guilty, and that third parties were guilty. Dubose v. State, 10 Tex. App. 230. There is no doubt but that it has been the rule since the Dubose Case that the defendant is entitled to introduce evidence that another party or parties were in position to have committed the offense and to prove a confession, where the state relies alone on circumstances for a conviction. Motive, threats, and other matters of that character are also admissible to show a reason why the others, and not the defendant, committed the offense. See paragraph 3 of section 336, Branch's Criminal Law, for authorities sustaining this contention. It is also true, however, and is well established by the authorities in this state, that, before this character of testimony is admissible, there must be some pertinent evidence showing that such other person was in such proximity to the offense as would make it reasonably probable that he might have been guilty of the same. Walsh v. State, 85 Tex. Cr. R. 208, 211 S. W. 243; McInturf v. State, 20 Tex. App. 355; Young v. State, 49 Tex. Cr. R. 212, 92 S. W. 841; McCorquodale v. State, 54 Tex. Cr. R. 354, 98 S. W. 879; Turman v. State, 50 Tex. Cr. R. 10, 95 S. W. 533; Henard v State, 47 Tex. Cr. R. 172, 82 S. W. 655, 17 Ann. Cas. 670; Porch v. State, 50 Tex. Civ. App. 335, 99 S. W. 102; Wallace v. State, 46 Tex. Cr. R. 349, 81 S. W. 966. Under the rule as above stated, the court did not err in excluding the testimony of the witness, Mrs. Cora Parson, because there was no showing made that Alfred Goodwin was in such proximity to the offense, at the time it was committed, as would make it reasonably probable that he might have been guilty of the same. our opinion, a proper disposition of them was there made. The motion is overruled. BROWN V. STATE. (No. 8504.) (Court of Criminal Appeals of Texas. Oct. 22, 1924. Rehearing Denied June 10, 1925.) I. Criminal law 959-Denial of postponement of hearing of motion for new trial because of absent witness held not error. Refusal to postpone defendant's motion for amination he complained, was not error, where new trial for absence of witness, of whose exnone of matters set up were alleged to be newly discovered, or such as might have been verified by witness to defendant's benefit. 2. Criminal law 1120(4)-Bill not containing alleged erroneously admitted evidence need not be considered. Where bill of exceptions does not contain testimony, admission of which is complained of, such bill may be dismissed from further consideration. 3. Criminal law 406 (4)-Defendant's testimony under oath on examining trial admissible on final trial. Where defendant took stand and testified under oath as witness in his own behalf on examining trial, his testimony may be reproduced against him on final trial, whether he was warned or not, especially where he made no statement, such as is contemplated by Code Cr. Proc. 1911, arts. 294, 295. 4. Witnesses, 383-Hearsay testimony, offered for impeachment purposes, held properly excluded as immaterial. Hearsay testimony of D., that R. told him that, if defendant did not watch out, deceased would kill him, even if for purpose of impeaching R., was properly excluded, since it was relative to an opinion which could not have been testified to by R. himself, and was there fore immaterial. 5. Criminal law 419, 420(10)-Proof of alleged communicated threat need not be made by party hearing threat; proof of threat held hearsay. We have carefully examined the facts in Proof of alleged communicated threat, made this case, and conclude that they are amply sufficient, and, finding no error in the rec-made by party hearing the threat, and proof by deceased against defendant, need not be ord, it is our opinion that the case should that the threat was made by one hearing its be affirmed. PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. On Motion for Rehearing. MORROW, P. J. We have re-examined the record in the light of the appellant's motion for rehearing. The complaints of the procedure embraced in the motion were fully considered in the original hearing, and in communication to defendant would be obnoxious to rule against hearsay evidence. 6. Criminal law 1120(1)-Bill, complaining of exclusion of testimony as to communication of threats, held not to show error. Bill of exceptions, complaining of exclusion in murder prosecution, of testimony of defendant's wife, as to hearing R. tell defendant of "threats" made against defendant by deceased, held not to show error, especially where no charge on communicated threats was given or requested and no exception reserved because of its omission; "threats" being too general and indefinite. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 7. Criminal law 419, 420(10) Evidence ters set up in the motion relative to said witness. Assuming diligence sufficient, we have been unable to ascertain in what way the presence of the witness could have aided appellant upon his motion. There is no matter Testimony of defendant's wife, in murder prosecution, as to statements made by R. to defendant relative to deceased, was inadmissi-set up therein claimed to have been newly ble for purpose of supplying, through wife, evi- discovered; hence nothing which might have dence which defendant had expected from R.. been verified by the witness to appellant's but which latter declined to give, and inadmis- benefit. All matters relative to the examinasible to impeach R. in absence of proper predi- tion of the witness urged as erroneous in the cate. motion are contained in other bills. 8. Criminal law 1114(3) -Exclusion of offered testimony as to threats made by deceased against defendant held not error, in view of testimony of witness in direct conflict with offered testimony. Exclusion of offered testimony of defendant's witness, in murder prosecution, who, it is alleged, would have testified to threats by deceased against defendant, held not error, where bill failed to show language of deceased, and such witness' testimony at trial was in direct conflict with recital in bill as to what he would have sworn to. On Motion for Rehearing. 9. Homicide 339-Exclusion of testimony of defendant's wife as to another telling defendant of threats made by deceased, if error, held harmless, where not shown that defendant heard or acted thereon. Exclusion of testimony of defendant's wife, in murder prosecution, as to hearing R. tell defendant that deceased had threatened defendant's life, even if error, held harmless, where defendant, though he testified, did not state that he heard R. make such alleged statements, and it was not shown that defendant relied on such statements, or that it influenced him in any way in committing homicide. [2, 3] We observe no impropriety in admitting in evidence at the state's instance excerpts from the testimony of appellant given at the examining trial as complained of in bill No. 5. The bill does not contain the testimony thus admitted and might be dismissed from further consideration for that defect. See authorities collated under section 210, p. 135, Branch's Ann. P. C. It appears that one of the objections urged was that accused had not been warned as required by law at the time the statements introduced against him were made. The court's explanation reveals that at the examining trial appellant made no statement such as is contemplated by articles 294 and 295, Code of Criminal Procedure 1911, but that in due order of procedure he took the witness stand in his own behalf, and it was testimony thus given by him that was introduced against him on this trial. It is well settled that, if a defendant takes the stand and testifies under oath as a witness in his own behalf on his examining trial, his testimony may be reproduced against him on the final trial, whether he was warned or not. Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37; Kirkpatrick v. State, 57 Tex. Cr. R. Appeal from Criminal District Court, Har- 17, 121 S. W. 511; Pierce v. State, 90 Tex. ris County; C. W. Robinson, Judge. Joe Brown was convicted of murder, and he appeals. Affirmed. Fuller & Fuller, of Houston (Mathis, Heidingsfelder, Teague & Kahn, of Houston, of counsel on rehearing only), for appellant. Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State. HAWKINS, J. Appellant is condemned to suffer the death penalty for the murder of Frank Armstead. [1] There are six bills of exception in the record. They will not be discussed in the order they appear, but the sixth bill will be first considered. In the motion for new trial appellant assigns error in several particulars relative to the court's action with respect to the examination of the witness Dupslaus. He made application for postponement of the hearing of his motion for new trial because of the absence of said Dupslaus, by whom appellant says he expects to prove the mat Cr. R. 302, 234 S. W. 537. [4] It is made to appear by bill of exception No. 2 that appellant offered to prove by Dupslaus that one Robinson had told Dupslaus that, if Joe Brown (appellant) did not watch out, Frank (deceased) would kill him. This was excluded upon objection that it stated an opinion and conclusion of the witness. It will be observed that it was not an inquiry of Robinson as to what, if any. thing, he told accused, but was an inquiry if one witness had not expressed to another an opinion as to the probability of deceased killing accused. Robinson himself would not have been permitted to testify to such an opinion expressed to Dupslaus, and much more objectionable was the effort to supply Robinson's opinion by the hearsay evidence of Dupslaus. The court explains the bill by stating that it was an effort to impeach Robinson and that the question to Dupslaus was held objectionable because no proper predicate had been laid when Robinson was testifying. In any event the bill presents no error. If the purpose of the inquiry was for |