Graeter v. The State

• Decision Date: 29 January 1886
• Docket Number: 12,742
• Citation: Graeter v. The State, 4 N.E. 461, 105 Ind. 271 (Ind. 1886)
• Parties: Graeter v. The State
• Court: Indiana Supreme Court

4 N.E. 461

105 Ind. 271

Graeter v. The State

No. 12,742

Supreme Court of Indiana

January 29, 1886

From the Knox Circuit Court.

Judgment affirmed, with costs.

O. H Cobb and J. S. Pritchett, for appellant.

W. A Cullop, Prosecuting Attorney, G. W. Shaw and C. B. Kessinger for the State.

OPINION

Mitchell, J.

The grand jury of Knox county presented to the court, by formal indictment, that Frederick Graeter did, on a day therein named, unlawfully permit a certain frame building situate on lot numbered forty-one, in the city of Vincennes, which he had theretofore let to one Mollie Avery to be kept as a house of ill fame and resorted to for the purpose of prostitution, then and there well knowing that it was so kept, etc.

After conviction there was a motion to arrest the judgment, on the ground that the facts stated in the indictment did not constitute a public offence. It is contended that the court erred in overruling this motion. The reasons assigned are that the indictment does not disclose the terms of the letting, the time when the tenancy commenced, nor that the person to whom the building had been theretofore let was at the date of the alleged offence, or within two years prior thereto, the tenant of the defendant. Section 1994, R. S. 1881, provides that, "Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness; or knowingly lets a house to be so kept; or knowingly permits a house which he has let to be so kept,--shall be fined," etc.

The indictment is predicated on the last clause of the foregoing statute. The offence is described substantially in the terms employed in defining it. As a general rule this is sufficient. State v. Miller, 98 Ind. 70; Betts v. State, 93 Ind. 375. Whether the house was, at the date of the alleged offence, let to and occupied by Mollie Avery, is not stated in the indictment with as much certainty as a strict regard for technical precision might require, on a motion to quash. It is charged, however, that the house had been theretofore let to her, and that subsequent to the letting the defendant had knowingly permitted it to be kept as a house of ill fame. On a motion in arrest, if the indictment is found to contain all the essential elements of a public offence, even though to some extent defectively stated, it will be held sufficient. Greenley v. State, 60 Ind. 141; Lowe v. State, 46 Ind. 305; Shepherd v. State, 64 Ind. 43.

The sixth, seventh and eighth instructions given by the court are complained of. In the sixth, the jury were told that it was not necessary for the State to prove particular acts of prostitution, as having occurred in the house, in order to establish the allegation that it was a house of ill fame. That while such proof was competent, it was also competent, for the purpose of sustaining such allegation, to prove the general reputation of the house, and also of its inmates and frequenters, male and female, "and of the defendant, for chastity and virtue." The last part of the instruction is especially assailed. If any evidence had been either offered or admitted, upon the subject of the defendant's chastity or virtue, in proof of the allegation referred to, we should have no doubt but that the giving of that part of the instruction quoted, as well as the admission of such evidence, would have been such error as must have resulted in a reversal. It was not proper to admit or to consider evidence of the defendant's reputation for chastity and virtue, in order to establish the allegation that the house was a house of ill fame. No such evidence was offered or admitted, and so far as the record shows the subject of the defendant's reputation was in no manner suggested during the course of the trial except as above stated. We can not, therefore, considering the result arrived at upon the evidence, regard the error as one which could have misled the jury or prejudiced the substantial rights of the defendant. Section 1891, R. S. 1881; Epps v. State, 102 Ind. 539, 1 N.E. 491. That it was competent to consider evidence of general reputation, to establish the fact that the house was kept as a house of ill fame, see Betts v. State, supra.

The jury were told in the seventh instruction, that a landlord could not be convicted of the offence charged, without proof that he had knowledge that the house let was kept as a bawdy-house, but that it was not necessary to prove that he had witnessed acts of prostitution in the house, or that he had been personally notified of such acts; that knowledge might be proved by circumstantial evidence, by proof of such facts and circumstances as would justify the jury in coming to the conclusion that he had such knowledge.

The appellant insists that the proof must have shown that he had actual knowledge that the house was being kept as a house of ill fame, and that, with such knowledge, he willingly permitted the house to be so kept. If by actual knowledge it is meant that he must have had personal knowledge, from having witnessed acts of prostitution, we do not agree with counsel's contention. The appellant may have had such actual knowledge from facts and circumstances, as required him to expel the...