Howard v. People

• Decision Date: 04 June 1900
• Citation: 27 Colo. 396,61 P. 595
• Parties: HOWARD v. PEOPLE.
• Court: Colorado Supreme Court

61 P. 595

27 Colo. 396

HOWARD v. PEOPLE.

Supreme Court of Colorado

June 4, 1900

Error to Mesa county court.

Emma Howard was convicted of keeping a disorderly house, and she brings error. Reversed.

The information under which the conviction was had charges in the first count that on or about the 1st of August, 1898, and each and every day thereafter, till November 10th, the defendant knowingly and unlawfully maintained and kept a lewd house and place for the practice of fornication; and in the second count, containing the same allegation as to time, that defendant knowingly and unlawfully kept a common ill-governed, and disorderly house, to the encouragement of idleness, gaming, drinking, fornication, open lewdness, the solicitation by prostitutes therefrom, fighting, the willful disturbance of the peace and quiet of the neighborhood, loud and unusual noises, threatening, and traducing.

Henry W. Ross and S. N. Wheeler, for plaintiff in error.

David M. Campbell, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen and Dan B. Carey, Asst. Atty. Gen., for the People.

CAMPBELL C.J.

A large number of errors have been assigned and argued. The transcript of the record is prepared without reference to chronological order of the proceedings below. Both the record and the abstract are confusing, and it has been a laborious task to obtain a satisfactory understanding of the questions sought to be raised.

The attorney general in his brief states that there is no affirmative showing in the record, as certified here, that all of the evidence heard at the trial is contained in the bill of exceptions, or that all of the instructions given by the court are thus preserved. In the reply brief this statement is not controverted, but the record, as a whole shows a reasonable compliance with our practice in these particulars. The certificate by the stenographer of the court, it is true, does not take the place of the certificate of the trial judge, but, by necessary implication, the correctness of the stenographer's certificate in this record appears from other recitals made by the judge. We make the foregoing reference, however, that we may call to the attention of the profession the slovenly manner in which records are sometimes prepared. To examine them with a view to do justice to the litigants involves unnecessary labor for the court, which considerate members of the bar should perform for themselves. A remedy for such carelessness or ignorance of our rules is a summary dismissal, which will be used if the practice continues, but there are certain features in this case which cause us to relax strict adherence to wholesome practice.

1. It is said that in the first count an attempt was made to charge two entirely distinct and separate offenses, viz. knowingly and unlawfully maintaining a lewd house, and knowingly and unlawfully maintaining a place for the practice of fornication. Counsel either misapprehend or misstate the import of this count. Section 1323, Mills' Ann. St. (section 839, Gen. St. 1883), upon which it is based, reads: 'If any person shall * * * maintain or keep a lewd house or place for the practice of fornication,' etc. It might well be said that 'house' and 'place' are used as synonymous terms. But, if they do not have in the statute the same meaning, then the keeping of a house of the kind designated and the keeping of a place of the same character are but different ways or methods of violating the statute; and, being stated therein disjunctively, these acts, when they relate to the same transaction, and are committed by the same person, at the same time, and for either or both of which the punishment is the same, may be charged each separately, or both conjunctively, as constituting but one offense, without violating any rule of criminal pleading.

2. It is stated that the second count is based upon two distinct and separate sections of the statute, viz. sections 1323, 1305, Mills' Ann. St. (sections 839, 821, Gen. St. 1883). In this contention, also, plaintiff in error is clearly wrong. This count is based upon the concluding part of section 1323, which provides a punishment 'if any person * * * shall keep a common, ill-governed and disorderly house, to the encouragement of idleness, gaming, drinking, fornication or other misbehavior.' The language of this count is in the precise terms of the statute down to and including the word 'fornication,' and then proceeds by the addition of the other language found therein. For several reasons the insertion of this language may be upheld, and the count regarded as being based upon section 1323. The concluding portion may be included in the expression 'other misbehavior' found in the statute, for the reason that the specific acts set forth may be regarded as of the same general character as those previously mentioned. If not of the same nature, they may be regarded as surplusage, and enough would be left in the count to constitute an offense.

The further point sought to be made, that two distinct offenses are contained in this count, viz. (1) the keeping of the kind of a house designated, and (2) fighting, disturbing the peace, etc., is palpably erroneous. The substantive part of the offense is that defendant kept a disorderly house, to the encouragement of idleness, gaming, fighting, etc., and not that she kept a house of that kind, and also indulged in drinking, disturbing the peace, etc. There is but one offense charged in either one of these counts, and the authorities cited by counsel for plaintiff in error to the proposition that two entirely separate and distinct offenses cannot be combined in one count, because it would be thereby rendered double, are not applicable.

3. Another objection is that neither count of the information charges any specific offense against the defendant under the law. The argument in support of the contention is that the particular acts of lewdness or disorder complained of should have been set forth, so that defendant might know in advance for what offense she was placed on trial. This, also, is a misconception, or misstatement, of the real nature of the offense. Both counts are in the exact language of the statute, and ordinarily that is a sufficient compliance as to definiteness and precision of statement. Manifestly, neither count is subject to the criticism, for in the first the defendant is charged with unlawfully maintaining and keeping a lewd house at a certain time and a certain place, and in the second count with keeping a disorderly house to the encouragement of idleness, gaming, drinking, etc.; and it is not essential that the particular acts of idleness, gaming, or drinking should be set out in the information, because the charge is that the disorderly house was kept to the encouragement of those things, and not that the defendant was guilty of the...