State v. Beebe

¶1*1301 2 3*129The indictment charges that the defendant kept a house of ill fame, “resorted to by divers ill— *130■disposed persons for tire purpose of prostitution and lewdness.” It was found under section 4939 of the Code, which reads: “If any person keep a house of ill fame resorted to for the purpose of prostitution or lewdness such person shall be imprisoned in the penitentiary not less than six months nor more than five years.” Defendant contends that the indictment is void for duplicity, in that it charged that the place was resorted to both for prostitution and for lewdness. There is no merit in this contention. The language of the statute is disjunctive, and it is permissible to use conjunctive words in tbe indictment. State v. Feuerhaken, 96 Iowa, 299. It is also said to be bad because the names of the persons resorting to the houses are not given. This is unnecessary. State v. Feuerhaken, supra.The names of the persons resorting to the houses are not an essential element of the cítense. State v. Alderman, 40 Iowa, 375; State v. Maurer, 7 Iowa, 406; State v. Patterson, 29 N. C. 70 (45 Am. Dec. 506) ; State v. Prescott, 33 N. H. 212; Com. v. Ashley, 2 Gray, 356. The indictment is in the language of the statute, and this so far individuates the offense that nothing further is required. State v. Bauguess, 106 Iowa, 107; State v. Porter, 105 Iowa, 677. It was unnecessary to allege that the act was done feloniously.

¶24 *131■6 6*130II. Section 4944 of the Code reads as follows: “The state upon the trial of any person indicted for keeping a house of ill fame may for the purpose of establishing the character of the house kept by defendant introduce evidenco of the general reputation of the house as so kept.” The state introduced evidence to show the reputation of the house, but the county attorney did not, by his questions, confine the time to a period antedating the finding of the indictment. Defendant’s objections to the questions were incompetent, irrelevant, and immaterial. These -objections were overruled. "When specific objection wan *131made because no time limit was fixed, tbe county attorney corrected bis question, and propounded one wbicb is admitted to be witbin tbe statute. Moreover, evidence as to general reputation of tbe bouse down to tbe time of trial was received without objection. In view of tbis record, there was no error of wbicb defendant may justly complain. Reputation is not made in a day, and tbe defendant should have pointed out in her objection tbe exact point relied upon. Each question propounded called for tbe reputation of tbe bouse at a time prior, and also subsequent, to tbe finding of tbe indictment. In view of tbis fact, defendant should have specifically pointed out her objection. Again, as much evidence on tbis point was admitted before objection was made, tbe ruling, even if erroneous, was without prejudice.

¶37 III. Complaint is made of evidence said to have been offered by tbe state, over defendants objections to tbe effect that defendant’s reputation for chastity prior to tbe finding of tbe indictment was bad. We do not find that any such evidence was admitted. An attempt was made to offer it, but tbe court either excluded it, or such as was received went in without proper objection being lodged against it. Whether or not evidence as to the character of the keeper is admissible is a question upon which tbe authorities are not agreed. See cases cited in 9 Ency. Pl. & Prac. pp. 534, 535, and cases cited. In State v. Hand, 7 Iowa, 411, we held that such evidence is not admissible for the purpose of showing defendant was guilty of tbe crime. Without at this time committing ourselves, it is sufficient to say that the weight of authority seems to favor tbe admission of such evidence as tending to show the character of tbe house. See State v. Brunell, 29 Wis. 435; People v. Saunders, 29 Mich. 269; Betts v. State, 93 Ind. 375; Sparks v. State, 59 Ala. 82. Contra, State v. Hull, 18 R. I. 207 (26 Atl. Rep. 191, 20 L. R. A. 609); U. S. v. Nailor, 4 Cranch, *132C. C. 372 (Fed. Cas. No. 15,853). Tbe objection that tbe state was not limited as to time does not properly arise on the record.

¶48 9 IV. One Hilliard was' offered as a witness by the defendant, who gave evidence to tbe effect that defendant was reputed to be a charitably disposed person, who was "kind to those who were sick and in distress, and that be bad never seen anything out of tbe way at her bouse, lie was asked on cross-examination about tbe reputation of the bouse, — as to its being a bouse of ill fame, — and testified, over defendant’s objection, that it bad that reputation. Claim is now made that this was not cross-examination. We think it was proper, or at least that it was within tbe discretion of tbe court to permit such a cross-examination. Tbe evidence tbe witness gave in chief opened a wide door as to tbe character of tbe bouse. Tbe objection to witness Hoff’s cross-examination has no foundation in the record. Carrie Patterson was a witness for defendant. She was asked on cross-examination if she bad not been tried on tbe charge of killing her husband. No objection was Interposed to this question, but we extract tbe following from tbe record: “Q. Now, Mrs. Patterson, you have been tried under tbe charge for killing your husband, haven’t you. A. Yes, I have; and I want you to know that I won’t stand that. I will kill him if be don’t stop it. (Great excitement. Court stops proceedings until order is restored.)” The question was manifestly improper, but tbe defendant seemed to court tbe investigation by allowing tbe witness to answer. Just what is meant by tbe parenthetical clause, we are unable to discover, As defendant seemed to be content to have the witness answer, we cannot say there was error of tbe trial court, or any such misconduct of counsel as would justify us in interfering. In any event, tbe question of prejudice was for tbe trial court. State v. Gadbois, 89 Iowa, 25.

¶5*13310*132y. Instruction No. 6 reads as follows: “(6) In con*133■sidering the question as to whether or not the house kept by the defendant, if you find that she did keep it, was a house of ill fame, resorted to by divers persons for the purpose of prostitution and lewdness, you will carefully consider the reputation of the house, the actions of those visiting the house, the time they did so, the reputation of the inmates of the house, as well as the reputation of those who visited the house, and all the facts and circumstances shown in evidence, and from these determine the real '■character of the house, charged in the indictment to be a house of ill fame.” This is said to foreclose all inquiry regarding the character of the house. We do not think so. 'The last clause of the instruction, which is made a special target, simply indentifies the house, and has no reference "to its character. Its character was left to the jury. Properly ■emphasized, it is absolutely correct, and there is no reason Tor believing that the jury understood the character of the liouse was assumed by the court.

¶6No prejudicial error appears, and the judgment is A.EEIRMED.