Terr. of Dakota v. Stone

• Decision Date: 01 January 1880
• Citation: 4 N.W. 697,2 Dak. 155
• Parties: The Territory of Dakota v. Stone.
• Court: South Dakota Supreme Court

4 N.W. 697

2 Dak. 155

The Territory of Dakota

v.Stone.

Supreme Court of the Territory of Dakota.

Filed _________ __, 1880.

Writ of error to the district court of Yankton county.S. L. Spink and C. J. B. Harris, for plaintiff in error.

French & Davis, for defendant in error.

SHANNON, C. J.

The indictment charges that the defendant did unlawfully and knowingly permit a certain building owned by him to be kept and maintained as a house of ill-fame, resorted to and visited by divers persons for the purpose of prostitution, unlawful sexual intercourse and lewdness, and for other lewd, indecent and obscene purposes.

It is founded upon sections 370 and 372, of chapter 33 of the Penal Code, which are as follows:

“Section 370. 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, or for any other lewd, obscene or indecent purpose, is guilty of a misdemeanor.”

“Section 372. Every person who lets any building or portion of any building knowing that it is intended to be used for any purpose declared punishable by this chapter, or who otherwise permits any building or portion of a building to be so used, is guilty of a misdemeanor.”

To this indictment the defendant pleaded not guilty, was convicted, and moved for a new trial. His motion was denied, and judgment was pronounced against him, for which he brings error to this court.

There are four assignments of error: First, in admitting evidence of the general reputation of the house alleged to have been kept as a house of ill-fame; second, in admitting evidence to prove that the said house was listed on the tax list of 1878 to the defendant; third, in charging the jury, among other things, as follows: “On this point I charge you, that, to make the defendant liable under the law, he must either actually consent to the alleged unlawful use, or silently acquiesce in it, and a mere failure on his part to interfere or prosecute so as to prevent the alleged illegal use, is not enough; consequently, the prosecution must show acts and circumstances to satisfy the the jury that the defendant, having knowledge of an unlawful use and purpose, such as alleged in the indictment, not only remained inactive, but directly or tacitly consented; and the burden of the proof is not changed, and the defendant is not required to show steps taken by him to manifest his dissent;” fourth, in overruling defendant's motion for a new trial.

1. As to the first assignment in relation to admitting evidence of the general reputation of the house, it is sufficient to state that the court, in the case of the Territory v. Chartrand, (at June term, 1877, 1 Dak. R. 379,) unanimously held such evidence admissible, as tending to establish the fact charged.

2. There is no force in thc second allegation of error. Under our revenue system every owner is himself required, each year, to list all his property, under oath. As the property was listed for 1878 to the defendant, the fair presumption was that it was done as the law requires. The evidence was, therefore, admissible on the question of ownership, and as a circumstance tending to throw some light upon the nature of the contract of July, 1877.

3. In order to arrive at a proper understanding of the third assignment of error, it is important to premise that the court, before instructing the jury as specified, had, after declaring the law applicable, charged them as follows:

“1. The first question, therefore, for you to determine is, was this particular house, at and before the time mentioned in the indictment, kept as a bawdy house, a house of ill-fame, or of assignation, or was it kept for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene, or indecent purpose? The question is, was this house so kept and so used? The supreme court of the territory has declared that, for the purpose of establishing whether a house is of this kind and nature, the general reputation and character of the house is admissible in evidence, and is competent before the jury-competent as tending to show the fact as to whether it is a house of that description. Now, the prosecution in every criminal action is bound to prove all the material allegations beyond a reasonable doubt. Is it, or is it not, in your mind, beyond a reasonable doubt that this house was so used and so kept? If you find it was not, then that ends this case. If you find it was so kept and used, beyond a reasonable doubt, then you pass to the other allegations contained in the indictment.

2. The next point in natural order is the question, was the defendant, before and at the time named, the owner of the house, and was the house under his control and management, so that he exercised the powers of an owner by the laws of the land? With these facts the question is, are you satisfied, beyond a reasonable doubt, that the defendant was, at the time alleged, the owner of the property, and that the property was under his control and management? If you are not so satisfied, beyond a reasonable doubt, then the case stops; but if you find that he was, then you proceed further and come to the next question in order.”

“3. Did the defendant, James M. Stone, unlawfully permit this building to be kept and maintained as a house of ill-fame, resorted to and visited by divers persons for the purpose of prostitution, and unlawful sexual intercourse and lewdness, and for other lewd, indecent and obscene purposes, and knowingly permitting the same to be so, as aforesaid, used? If you will remember, the statute or clause of the law I have read declares that any person who should permit any building, or portion of a building, to be so used is guilty of a misdemeanor.”

It was just at this point, and in direct connection with it, that the court introduced that portion of the charge which is complained of as error, to-wit: “On this point I charge you that, to make the defendant liable under the law, he must either actually consent to the alleged unlawful use, or silently acquiesce in it; and a mere failure on his part to interfere or to prosecute, so as to prevent the alleged illegal use, is not enough. Consequently the prosecution must show acts and circumstances to satisfy the jury that the defendant, having knowledge of an unlawful use and purpose, such as alleged in the indictment, not only remained inactive, but directly or tacitly consented; and the burden of the proof is not changed, and the defendant is not required to show steps taken by him to manifest his dissent.” “In case of a reasonable doubt as to whether his guilt is satisfactorily shown he must be acquitted.”

Both by the Penal Code and the Code of Criminal Procedure it is declared that “the rule of the common law that penal statutes are to be strictly construed, has no application to this Code.” By the former Code “all its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” According to this standard of construction the court evidently placed the law in a light quite favorable to the defendant. The law was stated as if it read that every person who consents that any building or portion of a building shall be so used is guilty of a misdemeanor. It is true that the words “to permit” are sometimes used as the equivalent of “to consent to;” but what is the fair and ordinary import of the word “ permit,” as it is employed in the Code? Does it not mean “allows,” or, less strictly, “tolerates” or “suffers?” as to tolerate a nuisance. When it is said that a man permits a building to be so used, does it not commonly mean that he suffers or allows it to be done without interference or prohibition, and that he allows or permits negatively by not preventing?

Yet the court instructed the jury that “a mere failure on his part to interfere, or to prosecute, so as to prevent the alleged illegal use, is not enough;” and, further, “that the defendant is not required to show steps taken by him to manifest.” The jury were instructed that, apart from all this and beyond it, they must find acts and circumstances to satisfy them that the defendant, having knowledge of such unlawful use and purpose, not only remained inactive, but directly or tacitly consented. A man may allow or permit by merely abstaining from prevention, when he has the power to prevent. He may tolerate or suffer (and thereby permit) a state of things, and by such permittance not wholly approve. But, as to the particular law under consideration, his permittance should not render him inexcusable, else the object of the law would not be effected, and public justice would not be promoted. For, although not entirely approving, yet being the owner, and having full power of control, he thereby aids, countenances and abets in the commission of a misdemeanor, and by reason of the law becomes a principal. Every one must so use his own rights and his own property as not to infringe upon the rights of others. In order to protect society and shield public morals it is but reasonable that every owner of a building should so control his property as not to allow, or suffer, or to permit its use and occupation for lewd, obscene, or other prohibited purposes. The owner, along with his rights, has also public duties to perform. If he so allows or suffers his property to be used, by the law, as well as in ethics, he becomes a principal mover and a regular participant in the public offence. In regard to this law the owner who, having knowledge, can and does not forbid or prevent, might safely be deemed to have permitted it.

Therefore, when viewed in the light of this usual occupation and common import of the word, if the defendant was the owner and had control; and if he had knowledge of the illegal use, and yet if he remained passive, without wholly approving or consenting, but failed to interfere...