State v. Farrier, Cr. No. 85.

• Decision Date: 01 February 1932
• Docket Number: Cr. No. 85.
• Citation: 61 N.D. 694,240 N.W. 872
• Parties: STATE v. FARRIER.
• Court: North Dakota Supreme Court

61 N.D. 694

240 N.W. 872

STATE

v.FARRIER.

Cr. No. 85.

Supreme Court of North Dakota.

Feb. 1, 1932.

Syllabus by the Court.

1. In a prosecution for receiving a woman, for the purpose of prostitution, into a building owned and controlled by the defendant, the reputation of the woman for morality and the reputation of the place as a disorderly house is admissible in evidence in support of the charge.

2. Error cannot be predicated upon refusal to advise or direct a verdict of not guilty.

3. It is not error for the court, in instructing the jury, to read the law applicable to the case at bar, and to give the statutory definitions of terms. Nor can it be said to be prejudicial error to describe facts necessary to find a defendant guilty of the crime in the first degree, even if the record shows some of the essential features lacking, when the defendant is found guilty in the second degree only.

4. The evidence in the case reviewed, and it is held, that though there is sharp conflict in the evidence in many respects, and though defendant's explanation of acts is consistent with innocence, if believed by the jury, nevertheless there is sufficient substantial evidence to sustain the verdict of guilty, and the judgment will not be reversed, especially as the trial court passed directly upon the sufficiency of the evidence, and determined that no good cause for a new trial has been shown.

Appeal from District Court, Dickey County; Wm. H. Hutchinson, Judge.

George Farrier was convicted of receiving into a building owned and controlled by him a female person for the purpose of prostitution, lewdness, and assignation and permitting her to remain there for that purpose, and he appeals.

Affirmed.

F. J. Graham, of Ellendale, for appellant.

James Morris, Atty. Gen., and C. A. Whipple, State's Atty., of Ellendale, for the State.

BURR, J.

The defendant is charged with the crime of receiving into a building then and there owned and controlled by him, “a female person for the purpose of prostitution, lewdness and assignation, and did permit” her to remain there for that purpose. The jury found the defendant guilty of such crime in the second degree, and he was sentenced in conformity with the verdict.

A motion for a new trial was made and denied. From the order denying this motion and from the judgment, the defendant appeals.

There are thirteen specifications of error; five of these deal with the admission of testimony, two with the refusal of the court to advise a verdict of not guilty, and to direct such verdict, four deal with alleged errors in the instructions, and two with the sufficiency of the evidence and in denying the motion for a new trial.

[1] The errors alleged in the reception of the testimony are without foundation. They deal with the question of the woman's reputation for morality and the reputation of the place. Witnesses testified they knew the reputation and what it was. Such testimony is admissible in cases of this character. Section 9643a3 of the Supplement says that in such cases as the one involved “the reputation of any place, structure or building and of the person or persons who reside in or frequent the same and of the defendant shall be admissible in evidence in support of the charge.” See State v. Mott, 53 N. D. 222, 226, 205 N. W. 234.

[2] There was no error in the court refusing to advise a verdict of not guilty or refusingto direct a verdict of not guilty. Section 10854 of the Comp. Laws 1913 permits the trial court to advise a jury to acquit the defendant if he deems the evidence insufficient to warrant the conviction. “But the jury are not bound by the advice, nor can the court, for any cause, prevent the jury from giving a verdict.” Error can not be predicated on the court's refusal so to do. See State v. Wright, 20 N. D. 216, 126 N. W. 1023, Ann. Cas. 1912C, 795, and State v. Albertson, 20 N. D. 512, 128 N. W. 1122.

[3][4] The four alleged errors in instruction deal with the action of the court in reading to the jury parts of the statute under which this prosecution was had. Chapter 190 of the Session Laws of 1919, being chapter 40A of the Penal Code shown in the Supplement (section 9643a1 et seq.). The court read to the jury section 1 of the act, gave the definitions of “prostitution,” “lewdness,” and “assignation” as defined in section 2 of the act, read the statutory provision regarding testimony as to the reputation of place and the frequenters thereof as set forth in section 3 of the act, and later gave the statutory distinctions which distinguish the degrees of the crime set forth in section 4 of the act. It is alleged these instructions were prejudicial because these portions are not applicable to the issues, that there were no facts warranting the giving of such instructions, that it inferred a conviction could be had upon reputation alone,...