43 Ky. 7 | Ky. Ct. App. | 1843
delivered the opinion of the Court.
This is an indictment against Frederick, a free man of color, for keeping a disorderly house. The only specifications in the indictment are, that the evil persons invited to and frequenting his house, were there permitted to remain, “drinking, tippling and otherwise greatly misbehaving themselves.” On the trial, among other acts of disorder proven, it was proven that Emily McCune and other prostitutes, occupied the upper rooms of the defendant’s house, as his tenants, to which a flight of stairs ascended on the outside of the house, and the entry to the rooms was not through the lower rooms, which were
In the absence of proof that the defendant was privy to or authorized the lease to Emily McCune, made by his agent, or that he was aware that she was a common prostitute, or intended to use the rooms as a bawdy house, he cannot be found guilty of aiding and abetting in keeping a bawdy house, nor in leasing to that end, within the principles settled by this Court in the case of Ross vs The Commonwealth, (2 B. Monroe, 417;) and during the continuance of the lease he cannot be said to have had control over the rooms leased. The first instruction given was, therefore, misleading and ought not to have been given.
The second instruction is also erroneous. The facts of prostitution proven, tend to show that the upper rooms were£rented, used and kept by Emily McCune as a bawdy house. This is a distinct offence for which she might be indicted for keeping, and he in aiding and abetting in keeping. There is no specification of this offence in the indictment, nor of any acts of prostitution. Such offence or acts cannot therefore be proven in aggravation of damages or otherwise. If they could, he might be twice punished for the same offence: first, under an indictment charging him with permitting drinking and tippling in his house, and secondly, under an indictment charging him with aiding and abetting in keeping a bawdy house. The allegation ‘ ‘otherwise greatly misbehaving” after the proof of the acts of misbehaviour specifically charged, as '•drinking and tippling,” will authorize the proof of other acts of misbehaviour in aggravation of the damages, which do not in themselves amount to a distinct indictable offence, but will not. authorize the proof of a distinct offence not charged, and of which the defendant is not notified by the indictment, and against which he may not be prepared to defend himself.
An indictment charging generally the keeping of a disorderly house, without specification as to the acts of disorder, would not be good. So if the acts specified are not proven, the indictment cannot be sustained upon the proof of other ads not specified. But if the acts specified or such of them as constitute the house a disorderly one be proven, then other acts, which do not amount to a distinct offence, and for which a distinct prosecution will not lie, may be proven under the general charge to increase the fine.
Judgment reversed and cause remanded that a new trial may be granted.