The opinion
on rehearing.
March
4,
1914.
HARPER, Judge.
Appellant has now filed a motion asking a rehearing. We have carefully read his motion and the argument thereon,, and being still of the opinion the evidence supports the verdict, we would not write further, only that appellant insists that we pass on some-other questions raised, the first being that there is no evidence showing; that defendant is a male person, and the court should have instructed a-verdict of not guilty. We have read the record again, and while he is-generally termed “defendant” in the statement of facts, yet Mr. Swafford testified that defendant worked extra at the barbershop and received 60 per cent of what
he
took in, and no question that he was a male person, is raised by the testimony adduced on the trial.
The charge requested that “the jury would only consider such testimony as bears upon the status of the defendant at the time the complaint was filed” was not called for by the testimony. The whole testimony establishes but one status during the entire period of time to-which the testimony related, and related to a time charged in the information.
The law in this State is that a person charged with an offense on or about a named date, can be convicted of that offense at any time within, the period of limitation fixed for that offense, unless a person on trial should claim that the time fixed by the evidence was so different to that charged in the information as to be ground for surprise, and he should for that reason ask for a postponement that he might obtain evidence.to meet the charge as made by the testimony. There is no contention that appellant was surprised by the testimony, or that he could at a future trial .make any more effective defense, and under such circumstances, the charge of the court is not subject to the criticism contained in appellant’s bill of exception No. 4.
Appellant insists that the evidence in this case brings him within the-rule announced in the Ellis case, 65 Texas Crim. Rep., 480 , 145 S. W. Rep., 339 , wherein this court said: “The statute was intended to reach-a class of persons who associated with prostitutes as their equals, or who-associated with them in public, and was not intended to make a vagrant of a person who, at night, went occasionally to the room of a woman of loose morals, and yet at no other time was seen in her company.” This is a correct construction of the statute, and the testimony in this case-
*192
would show that appellant is a person who associated with the prostitutes as his equal, habitually visiting this place both day and night, eating at the table with them, keeping his clothes at this place, and having his washwoman call there and get them, and if there ever will he a case that can be brought within the provisions of the Code this is one of them, as shown by the testimony hereinbefore copied.
The motion for rehearing is overruled.
Overruled.