140 Iowa 342 | Iowa | 1908
— The charging part of the indictment was as follows: “The said Hector McDavitt on or about the 8th day of May, A. D. 1908, in the county of Polk and State of Iowa, did willfully, unlawfully and feloniously resort to, use and occupy and was found in a certain hotel situated in the county aforesaid, and known as the Morgan Hotel, for the purpose of lewdness, the said hotel being then and there in the possession of and under the control of Phillip Morgan.” The section of the Code under which the indictment was found is as follows: “Sec. 4943. Prostitution. If any person for the purpose of prostitution or lewdness, resorts to, uses, occupies or inhabits any house of illfame or place kept for such purpose, or if any person be found at any hotel, boarding house, cigar store or other place, leading the life of prostitution or lewdness, such person shall be imprisoned in the penitentiary not more than five years.” The jurors were instructed that if defendant did resort to, use and occupy the hotel described for the purpose of lewdness, he was leading a life of lewdness at such hotel within the statute. The evidence connected the defendant with the hotel only, as a person who there had and occupied a room in which during one night acts of lewdness were committed.
We think that the indictment did not charge a crime under the statute, and that the instruction which authorized a conviction on proof of the acts charged in the indictment was erroneous. The statute, so far as it has reference to the facts which the evidence tended to prove, makes it -criminal to resort to a house of illfame for the purpose of lewdness, or to be found in a hotel leading a life of lewdness, and it was for the second form of the
The judgment of conviction is reversed: