State v. PearsallState v. Pearsall
- Reporters:
- Before:
- Adams
Thе court instructed the jury as follows: “ Proof that the defendаnt acted as keeper of the house or so hеld himself out to the world is sufficient. You are to take into consideration all the circumstances. In the absence of proof to the contrary the persons in possession of the premises and occupying the same are presumed to have control of them, аnd a continual use of the same for a considerаble time as a house of prostitution would justify tbe jury in finding that the defendant if living in the house was consenting to and a party tо the use of it for that purpose, although the evidenсe did not show he actually received any money оn account of such use.”
To the giving of this instruction the defendant excepted and now assigns the same as errоr.
The evidence shows that the house in question was a house of ill fame owned by the defendant, Pearsall. But it was rented to and kept by one Mrs. Rufe. Whether it was kept also by the defendant is the question in the case. The instruction is objected to upon the ground that there was no evidеnce to justify it.
*631One of the witnesses says: “Pearsall has madе his home there. Have seen him carrying provisions there. Another witness, who is an inmate of the house says: “Mr. Pearsall goes to Mrs. Rufe’s frequently. He stays all night there once in a while. He generally eats there on Sundays. I don’t know but he hаs come there on Saturday-and stayed until Monday morning. He sometimes comes up there and eats dinner. Somеtimes he goes in the pantry and eats.” Another witness says: “I sаw Pearsall building the house. I have seen Pearsall arоund there frequently. I think I saw him once fixing up the fence, and have seen him lots of times doing nothing.”
Taking the evidence аltogether, we think.it shows that the house is not Pearsall’s usual home, but that he is often there looking after his premises, аnd may be said to live there on Sundays. We think the evidence would justify the jury in so believing. Assuming, then, that the defendant owns the housе and lives in it a part of the time, would that constitute him joint keeper of the house with Mrs. Rufe, there being-no evidence that he was not there as a boarder? We arе of the opinion that it would not. The most which the evidence establishes is that defendant is lessor of the house and knowingly permits it to be, used as a house of ill fame. This constitutes a distinct offense and must not be confounded with that of which the defendant is convicted. He who keeps a house of ill fame has some interest in it as such, or pаrticipates or is authorized to participatе in some way in its management. In this case there is no evidеnce of either. His rent was neither greater nor less аccording to the patronage which the house received, nor did he furnish or discharge inmates or have authority to furnish or discharge them, or to control the house in any respect so far as the record shows.
Reversed.