55 Ala. 217 (Ala. 1876), Wooster v. State

Citation:55 Ala. 217
Opinion Judge:BRICKELL, C.J.
Party Name:Wooster v. The State.
Attorney:JNO. GINDRAT WINTER, for the defendant. JNO. W. A. SANFORD, Attorney-General, for the State.
Court:Supreme Court of Alabama
 
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Page 217

55 Ala. 217 (Ala. 1876)

Wooster

v.

The State.

Supreme Court of Alabama

December Term, 1876

Indictment for Keeping Bawdy-House.

FROM the City Court of Montgomery.

Tried before the Hon. JNO. A. MINNIS.

JNO. GINDRAT WINTER, for the defendant.

1. The court erred in not sustaining the demurrer to the indictment. The two counts charged different offenses, which could not properly be joined in the same indictment.-- The State v. Covy, 4 Porter, 186; Coleman v. The State, 5 Porter, 32; Norvell v. The State, 50 Ala. 174; Amer. Crim. Law, vol. 1, § 395. The defendant was entitled to the benefit of her demurrer, and the consequences of the misjoinder could not be avoided by striking out one of the counts.-- Rose v. The State, Minor, 28.

2. The court erred in admitting evidence of the general reputation of the house and its inmates.--Amer. Crim. Law, vol. 3, § 2367; Commonwealth v. Hopkins, 2 Dana, 418; Overstreet v. The State, 3 How. Miss. 328; United States v. Jourdine, 4 Cranch, 338; People v. Mauch, 24 How. N.Y. Pr. 276; Commouwealth v. Stewart, 1 Serg. & R. 342.

JNO. W. A. SANFORD, Attorney-General, for the State.--There was no misjoinder of offenses in the indictment. The two offenses charged belong to the same class, and are subject to the same kind of punishment, differing only in the degree of severity.-- Cawley v. The State, 37 Ala. 152, and authorities there cited; Oliver v. The State, 37 Ala. 134; Scott v. The State, 37 Ala. 122; Johnson v. The State, 29 Ala. 62. Even if there was a misjoinder, the solicitor had a right, with the consent of the court, to enter a nolle-prosequi as to one count, notwithstanding the demurrer.--Rev. Code, § 4150; United States v. Stowell, 2 Curtis, C. C. 153. As there was no judgment on the demurrer, there is nothing for this court to revise in reference to it.-- Lewis v. Paul, 42 Ala. 140.

BRICKELL, C.J.

The first count in the indictment charges the statutory offense of being "a common prostitute, or the keeper of a house of prostitution," having no honest employment, whereby the defendant could maintain herself. The second count charges the common-law offense of keeping a bawdy-house. The two offenses are of the same nature, belong to the same class of crimes, and each is a misdemeanor. The statutory offense is punishable, on the first conviction, by fine of not less than ten...

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