Drake v. State
| Decision Date | 12 October 1883 |
| Parties | WILLIAM C. DRAKE, PLAINTIFF IN ERROR, v. THE STATE OF NEBRASKA, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before GASLIN, J., in absence of POUND, J.
AFFIRMED.
L. W Billingsley and James E. Philpott, for plaintiff in error.
Proof that the house was of ill fame must be by facts, not fame. State v. Boardman, 1 Am. Crim. Rep., 351. 2 Bishop Crim. Proc., § 91. Caldwell v. The State, 17 Conn. 467. Selection of grand jury. Comp. Stat., 618, 726. McElvoy v. The State, 9 Neb. 157. Burley v. The State, 1 Neb. 397. Right of GASLIN, J., to hold term. Comp. Stat., 201. Ellis v. Karl, 7 Neb. 385.
Isaac Powers, Jr., Attorney General, for the State, cited State v. Brunell, 29 Wis. 435. Candy v. The State, 8 Neb. 485. Nuckolls v. Irwin, 2 Neb. 63.
The plaintiff in error was convicted under sec. 210 of the criminal code, for permitting a house, of which he was the owner, to be "used and occupied as a house of ill fame."
The first objection made to the conviction in the brief of counsel is, that the evidence was insufficient to warrant it. In this we think counsel is mistaken. The evidence to establish the guilt of the accused was overwhelming. It consisted not only of the uncontradicted testimony of a large number of credible witnesses residing in the neighborhood of the house, that it was of ill fame during the time laid in the indictment, but that it was frequented almost exclusively by persons of bad repute of both sexes for evil practices, including that of unlawful sexual intercourse. We will not quote from the evidence, but simply say of it that, from a careful perusal, we are satisfied it fully supports the verdict of guilty.
Perhaps the principal point urged in support of this objection deserves a more particular notice. That point is, that in prosecutions of this nature the evil character of the house must be established by proof of facts, and not by its reputation alone. While we do not think the evidence in this case open to such criticism, perhaps it is best that the rule be stated as we understand it.
Under this indictment the prosecution was required to show three principal facts. 1st, That the house was of ill fame, or, in other words, a house known to be resorted to for the purposes of prostitution. 2d, That the prisoner was the owner or had control of the house. And 3d, That he knowingly permitted it to be occupied and used as a house of ill fame.
Conceding that the prisoner was the owner of the house, and knew of the use to which it was put, the further fact that its reputation in the neighborhood was that of a bawdy house, or one of ill fame, would not sustain a conviction. But there must be added to these facts the additional one that it was really a house of ill fame--a house resorted to for acts of prostitution.
To establish the bawdy character of the house, its general reputation and that of the persons frequenting it were competent evidence. It was not necessary to show particular acts of prostitution in the house. State v. Brunell, 29 Wis. 435. It was enough that, in addition to the bad reputation which the house was shown to bear, notwithstanding no family lived in it, some of its rooms were supplied with beds and some little furniture, and the walls hung with indecent pictures; that it had a bar at which intoxicating drinks were sold, and was the resort, especially on Sabbath days and in the night-time, of men and women of lewd and lascivious character, many of the women being known prostitutes and keepers and occupants of places of ill fame in the city of Lincoln, who, while visiting this house, indulged in drunken revelry and licentious practices fit only for a brothel, which the evidence of what transpired there clearly shows it to have been. State v. McDowell, Dudley (S.C.) 346. 3 Greenleaf on Evidence, § 186. Commonwealth v. Stewart, 1 Serg. & Rawle 342. Cadwell v. The State, 17 Conn. 467.
Objection is made to the grand jury which found the...
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