State v. Gill

• Decision Date: 10 February 1911
• Citation: 150 Iowa 210,129 N.W. 821
• Parties: STATE v. GILL ET AL.
• Court: Iowa Supreme Court

150 Iowa 210

129 N.W. 821

STATE

v.GILL ET AL.

Supreme Court of Iowa.

Feb. 10, 1911.

Appeal from District Court, Mahaska County; W. C. Clements, Judge.

The defendants were convicted of keeping a house of ill fame, and they appeal. Affirmed.C. Ver Ploeg, for appellants.

H. W. Byers, Atty. Gen., and C. W. Lyon, Asst. Atty. Gen., for the State.

LADD, J.

The defendants were jointly indicted, and, as they are husband and wife, counsel argue that the presumption that what the latter did was by coercion of the husband and for this reason she should have been acquitted. As to many offenses committed in the husband's presence, such is the rule. State v. Harvey, 130 Iowa, 394, 106 N. W. 938;State v. Kelly, 74 Iowa, 589, 38 N. W. 503; State v. Fitsgerald, 49 Iowa, 260, 31 Am. Rep. 148. But this rule has no application to the crime of keeping a bawdyhouse or house of ill fame, “for this is an offense as to the government of the house in which the wife has the principal share, and also such an offense as may generally be presumed to be managed by the intrigue of her sex.” 1 Hawk. P. C. C. § 12; State v. Jones, 53 W. Va. 613, 45 S. E. 916;Com. v. Cheney, 114 Mass. 281;State v. Bentz, 11 Mo. 27. See Rex v. Dixon, 10 Mod. 335.

2. Complaint is made of the refusal by the court to instruct the jury that “in order to find the defendants guilty * * * you must find from the evidence that the men or persons frequenting said defendant's house were of ill repute, and were of licentious inclinations.” Such a finding was not essential. If persons frequented such places for the purpose of indulging their sexual passions or some other lewd purpose, as the jury were told was necessary in order to convict, they must have had the “inclination” mentioned, and it was immaterial of what repute they were. Regrettable though it be, persons of good repute are sometimes found at such places, but this extenuates in no manner the crime of their maintenance. The instruction was rightly refused.

3. Another instruction was requested and refused. This directed an acquittal unless “more than one act of illicit sexual intercourse took place in defendant's house, and that such acts of sexual intercourse must have been with others than the defendant. Any number of acts with defendant alone would not make the place a house of ill fame. Therefore, if you find from the evidence that defendant's house was resorted to by men for the purpose of illicit intercourse with the defendant May Gill, but you do not find that said acts of sexual intercourse were with another person except said May Gill, then you should acquit.” Of course, a single act of illicit intercourse in a place will not alone constitute it a house of ill fame, nor at the common law did any number of incontinent acts by the proprietor with one or many persons. A bawdyhouse was defined as “a house of ill fame, kept for the resort and convenience of lewd people of both sexes,” and it was said in State v. Evans, 27 N. C. 603, that “the residence of an unchaste woman--a single prostitute--does not become a bawdyhouse, because she may habitually admit one or many men to an illicit cohabitation with her. The common law did not undertake the correction of morals in such cases, but left the parties to spiritual supervision and penances. * * * A bawdyhouse is not the habitation of one lewd woman, but the common habitation of prostitutes--a brothel. That such is the just notion of this offense is very clear from Pierson's Case, 1 Salk. 382, 2 Lord Raym. 1197. It was there held that an indictment will not lie for being a bawd and unlawfully procuring evil-disposed men and women to meet and commit whoredom and fornication, for it is but a solicitation of chastity, and, like a want of chastity in any individual, was a spiritual offense; and the indictment should have been for keeping a common bawdyhouse which is there described as an offense committed by one, who has a house or a room, and therewith accommodates lewd people to perpetrate acts of uncleanness--plainly meaning, acts between the persons thus entertained.” And such is the view of the law entertained in other decisions. People v. Buchanan, 1 Idaho, 681;Moore v. State, 4 Tex. App. 127;State v. Calley, 104 N. C. 858, 10 S. E. 455, 17 Am. St. Rep. 704; Bishop's New Criminal Law, § 1085. And an instruction so stating seems to have been approved in State v. Lee, 80 Iowa, 75, 45 N. W. 545, 20 Am. St. Rep. 401. In People v. Mallette, 79 Mich. 600, 44 N. W. 962, a different opinion was expressed though without discussion or citation. Whether such is the law in view of language of the statute and the more recent decision need not now be determined, for the facts of this case do not bring it within the rule as contended for here--the defendants lived together, and the husband in permitting his wife to turn the house into a place of prostitution became equally guilty with her. As he was proprietor of the place, even though his wife may have participated in its government, any acts of incontinence with her were not with the proprietor, and therefore might constitute the place a bawdyhouse, even though never...