Fahnestock v. State

• Decision Date: 26 May 1885
• Citation: Fahnestock v. State, 102 Ind. 156, 1 N.E. 372 (Ind. 1885)
• Parties: Fahnestock v. State.
• Court: Indiana Supreme Court

102 Ind. 156

1 N.E. 372

Fahnestock

v.State.

Supreme Court of Indiana.

Filed May 26, 1885.

Appeal from Randolph circuit court.

Thompson & Thompson and Watson & Engle, for appellant.

The Attorney General, for the State.

Howk, J.

The first error of which the appellant complains in this case is the overruling of his motion to quash the indictment. It was charged in the indictment that James Fahnestock, late of Randolph county, Indiana, “on the first day of September, 1884, at said county and state aforesaid, did then and there unlawfully frequent houses of ill-fame, well knowing them to be such; and did then and there unlawfully frequent houses of assignation, well knowing them to be such; and did then and there unlawfully associate with females known and reputed as prostitutes, to-wit, with one Hattie Knecht, and others whose names are to the grand jury unknown, well knowing them to be such; and was then and there unlawfully engaged in and about a house of prostitution; the said James Fahnestock then and there being a male person, contrary to the form of the statute,” etc. The only objection urged to the indictment by appellant's counsel is that it is bad for duplicity. It is manifest upon the face of the indictment that it was intended to charge the appellant therein with the offense against public morals of being a pimp. This offense is defined, and its punishment prescribed, in section 2002, Rev. St. 1881, which reads as follows: “Whoever, being a male person, frequents houses of ill-fame or of assignation, or associates with females known or reputed as prostitutes, or frequents gambling-houses with prostitutes, or is engaged in or about a house of prostitution, is a pimp, and, upon conviction thereof, shall be fined in any sum not more than one hundred dollars, nor less than ten dollars, and imprisonment in the county jail not more than sixty days, nor less than ten days.”

It is claimed on behalf of the appellant that the indictment against him in this case, the substance of which we have quoted, is bad for duplicity because it charges him, in a single count, with having committed on the same day and at the same place four separate acts, either one of which acts, if sustained by the evidence, would have been sufficient to show that, under the statute, he was guilty of the offense against public morals of being a “pimp.” If the indictment had charged him with the commission of only one of these acts, it would have charged him with the offense of being a pimp, and nothing less; and when it charged him, as it did, with the commission of the four acts at the same time and place, it charged him only with the single offense of being a pimp, and nothing more. It cannot be held that an indictment which charges the defendant with only one offense as the same is defined in the statute, is bad for duplicity merely because it charges him with the commission of several distinct acts at the same time and place, either one of which acts would be sufficient alone to constitute a proper charge of such offense. Where a statute like section 2002, above quoted, makes it an offense to do this, or that, or another thing, mentioning several things disjunctively, either of which would constitute one and the same offense, subject to one and the same punishment, it is the general rule that all the things mentioned in the statute may be charged conjunctively in a single count, as constituting but a single offense. In such a case the indictment is not open to the charge of duplicity, because there can be but one conviction and one punishment for one offense. State v. Bielby, 21 Wis. 204;Clifford v. State, 29 Wis. 327. This general rule in criminal pleading was recently approved and acted upon by this court in the well-considered case of Davis v. State, 4 Ind. Law Mag. No. 6, p. 317. Applying this rule to the case in hand, we have no difficulty in reaching the conclusion that the indictment against the appellant is not bad for duplicity, and that his motion to quash it was correctly overruled.

Under the alleged error of the court in overruling the appellant's motion for a new trial it is claimed by his counsel that two important legal questions are presented for decision in this case, by the instructions given by the court, and by the refusal of the court to give certain other instructions, at his request. These two questions are thus stated by his counsel: (1) “Under our statutes, what does it take to constitute a house a house of prostitution or ill-fame?” and, (2) “Under the same statutes, what does it take to constitute a woman a prostitute?”

In their discussion of the first of these two questions, the appellant's counsel earnestly insist that the trial court erred in its refusal to give the jury each and all of the following instructions, as requested by appellant, namely: “(1) If one woman live in and occupy a house, and no other woman or women live in or occupy said house with her, and the woman who so occupies said house occasionally or frequently admits one man-the same man-to said house for the purpose of, and does have, illicit sexual intercourse with him, such acts and conduct would not make said house a house of prostitution or ill-fame. (2) If one woman live in and occupy a house, and no other woman or women live in or occupy said house with her, and the woman who so occupies or lives in said house alone, occasionally or frequently admits one and the same man, or many men, for the purpose of, and does have, illicit sexual intercourse with such man or men so admitted to said house, such acts and conduct do not constitute said house a house of prostitution or ill-fame. (4) A house of prostitution or ill-fame is a house where prostitutes and lewd persons live, or where such prostitutes and lewd persons visit, and which is kept for the reception of persons who choose to resort to it for the purpose of illicit sexual intercourse. (5) A house of prostitution or ill-fame is a house or place where prostitutes and lewd persons resort, and which is kept for the reception of persons who choose to resort to it for the purpose of illicit sexual intercourse; and if a house is kept by one woman, in order to make it a house of prostitution it must be resorted to in common by other lewd women besides the keeper of the same. (7) The character of a house of ill-fame or prostitution is determined by the character of the persons who resort to or visit and live therein; and in order to make said house of Hattie Knecht a house of ill-fame or prostitution, it must have been shown by the state that prostitutes and lewd persons of both sexes resort to or live...