Abrahams v. State

4 Iowa 541 | Iowa | 1857

Whight, C. J.

The law provides that if any person let any house, knowing that the lessee intends to use it as a place or resort for the purpose of prostitution and lewdness, or knowingly permit such lessee to use the same for such purpose, he shall be punished by fine, &c. Code, § 2712. The material inquiry in the case, is, what is thé true meaning of the word permit, as here used ? We think the con-' struction given it by the court below, improperly changes the burden of proof. This construction assumes, that if it is once shown that a lessor has knowledge that the premises leased, are used for the illegal purpose, he must ■ show that he took some steps to prevent the same, if he would avoid liability. In our opinion, mere inaction on his part, or a failure to take some steps to prevent the illegal use, is not permitting it, in the sense contemplated in this section. ' The permission to do a particular thing, would imply an affirmative consent, or assent to it, rather than a failure to act to prevent it, or the want or absence of action. It is true that a failure to prohibit, may be said to amount to a license or permission to do a particular act; and in this sense, the word permit is sometimes used. But this is believed to be its secondary, rather than its primary signification. When thus used, it implies that the party has it in his immediate power to prevent the act or thing; and having failed to prohibit the same, it may well and safely be concluded, that he permitted it. When, however, as in the case before us, the offence on the part of those keeping the house, could only be prohibited by a legal prosecution; and where the occupants could in no sense be said to be so far under the control of the lessor, as that his mere dissent or order would amount to a prohibition, we cannot believe that his failure to act, or to prohibit, would amount to a permission.

To make the party liable under this statute, there must be on his part, a consent to such use, either expressly given, or given by his silent acquiescence. Where - the consent is expressly given, there, of course, would be no difficulty in showing that he permitted the use. What shall be said to amount to a silent acquiescence, it is impossible to determine from any rule applicable to all cases wbicb may arise. Eor tbe purposes of this case, it is sufficient to say, that a mere failure to interfere; or to prosecute, so as to prevent the illegal use, cannot be construed to amount to a permission, or into a silent affirmative acquiescence in such use. Tbe State must show such acts or circumstances as shall satisfy tbe jury, that tbe lessor having knowledge that tbe bouse was being used for tbe illegal purpose, after tbe execution of tbe lease, not only remained inactive, but assented or consented to such use; and it is not for him to show, that be took some step to manifest bis dissent or disapprobation.

Judgment reversed, and cause remanded for trial de novo.