1 Dakota 379 | Supreme Court Of The Territory Of Dakota | 1877
This case is before the court for review, a writ of error having been sued out by defendant, who stands convicted in the Second District court for - Yankton County of keeping a bawdy house, or house of ill-fames to remove the case to this court.
The indictment charges the defendant with keeping a house of ill-fame, resorted to and visited by divers persons of both sexes, for purposes of unlawful sexual intercourse, lewdness, etc. (See § 371, page 781, Revised Code.)
The first error assigned is this: that the Court erred in admitting evidence to show the general reputation or character of the house kept by defendant.
In disposing of this question, it is understood as the fact appears, that the defendant was the proprietor or keeper of the house in question. That fact being established, both upon principle and authority, we think the testimony competent. Acts of adultery, acts of lewdness, acts of prostitution, are hot acts to which the perpetrators give publicity or notoriety. Shameless and degraded indeed must this class of criminals be, who will not by all the means within their power conceal and hide their shame. Nor is it a crime which ordinarily will be attended with such circumstances as is calculated to lead to exposure and detection.
No immediate death or fatal shot will invite public attention to the criminals. Prom the necessity of the case, therefore, we are unanimously of the opinion that this testimony was properly received.
In State v. Burrell, 29 Wis., 435, the Court say: Prosecutio n must first show that the defendant kept the house in question, and may then show its general character or reputation, and that of its frequenters and of the defendant; and if this satisfies the jury that the house was of the kind described in the statute and indictment they may so find without proof of particular acts of prostitution or lewdness. The court below appears to have been governed (and we think properly) by this decision.
The second point will be more clearly understood by here inserting the following instructions: “The charge may be
The point here made by defendant’s counsel is this: — “ that the second issue upon which the jury was to pass was this: was the house so kept by the defendant a house of ill-fame, resorted to for purposes of prostitution and lewdness?”
This point, as I understand it, (although not very plainly stated), is this: — that the mere fact that the defendant was the keeper of a house of ill-fame, of bad repute, of .bad character, is not per se, or of itself a crime — a misdemeanor. But that in addition to the fact that the house is of ill-fame, it must further appear that such house of ill-fame was kept as a place for persons to visit for unlawful sexual intercourse or prostitution. The fact that the defendant’s house was a house of ill-fame must be charged in the indictment (as it in fact is), and that the proof must sustain that charge beyond a reasonable doubt. That the fact that defendant’s house of ill-fame was so kept for persons to visit for unlawful sexual intercourse or prostitution, was a necessary averment in the indictment, and must be established by evidence beyond a reasonable doubt. And defendant’s counsel insists that these issues, the two last, were not with appropriate instructions by the Court, submitted to the jury, but that the instructions upon these issues were erroneous.
It is proper to observe here that we are not examining the record in this case for the purpose of ascertaining whether other more full and perfect instructions might not have been submitted to the jury, had the defendant’s counsel at the proper time asked for such other or more definite instructions; we will only examine such questions as are presented by the bill of exceptions, and have been passed upon in the court below.
It is conceded that the instruction was proper so far as it submits to the jury the proof necessary to show proprietor
“ If such be shown as above stated, you may find therefrom that it was such house of ill-fame.” In other words and fairly interpreted, the Court say: Applying the rule as to reasonable doubt as above given, then if you find that the defendant’s house was resorted to by persons of both sexes, who were reputed to be of bad and lascivious character; and that it was generally reputed to be such house of ill-fame; then from such evidence, being governed by the rules given by the Court, you may so find — that is to say, you may from that evidence find the house to be a house of ill-fame, for persons of both sexes to visit for unlawful sexual intercourse and prostitution, a house of ill-fame of the character charged in the indictment.
I am unable to discover any error in the instructions given on these points. It is distinctly saying to the jury, that the prosecution may prove the character of the house by proof of the general reputation of the persons visiting it, keeping it, and of the house itself.
Had defendant’s counsel wished more definite or specific instructions upon the question of reasonable doubt, as applied to particular issues, he should have so requested at the proper time. Then if refused and excepted to, such refusal would have been before this court for review.
The only remaining question presented for our consideration, and forcibly urged upon the argument, is to the following language or part of the instruction: “A house of ill-fame is a house of bad reputation. I suppose you all well know the meanings of the words good reputation, and of the other words bad reputation.n
The skill and aptitude of defendant’s counsel upon the argument in disintegrating and separating the different parts of the instructions, impressed me strongly that here was a fatal error.
The question for the jury was not, is the house in question kept by defendant a house of bad reputation, or a house of good reputation, but was it a house of bad reputation in the sense in which it is charged in the indictment: — a house of ill fame, resorted to and visited for the purposes of prostitution?
It should be observed here that in determining the question of error in giving or refusing instructions, we must examine and pass upon the instructions as a whole and not in fragmentary parts, and from such examination determine whether the jury may have been misled, or the defendant may have been prejudiced. ' Applying this test, we are unable to discover that the jqry could have been misled by the instructions given, to the prejudice of the defendant.
The attention of the jury is first called to the charge as contained in the indictment, which was read to them. Next they were told that every person who keeps any bawdy house, house of ill-fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, etc., is guilty of misdemeanor. Here, then, the charge against the defendant is distinctly stated by the Court to the jury.
Next, they are plainly told what the prosecution must show to make its case, and the character and class of testimony upon which-they may find the house kept by the defendant, to be such house of ill-fame.
Now, what are we to understand by such house of ill-fame? Manifestly, a house of the class charged in the indictment read to the jury. A house of the character and reputation, the Court has just stated to the jury, the keeping of which was a misdemeanor.
The Court then propounds the question: “was it, or was it not generally reputed to have been such house of ill-fame?”
From a careful examination of the instructions, I am unable to discover that the jury may or could have been misled by the alleged erroneous words or'statements made use of, simply, to make plain and simplify the issues to be passed upon by the jury.
Let the judgment of the court below be affirmed, and the case remanded to the District Court of Yankton County for further proceedings according to law.
