Territory v. Mcgrath.

• Decision Date: 03 March 1911
• Parties: TERRITORYv.McGRATH.
• Court: New Mexico Supreme Court

16 N.M. 202

114 P. 364

TERRITORY

v.McGRATH.

Supreme Court of the Territory of New Mexico.

March 3, 1911.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Lizzie McGrath was convicted of setting up and keeping a house of prostitution within a certain distance of a benevolent society, and she appeals. Affirmed.

The indictment did not charge three distinct offenses by alleging that the house of prostitution was maintained within 700 feet of a masonic hall, and also of a theater and of the hall of another fraternal order.

The defendant and appellant was convicted of having set up and kept a house of prostitution in the city of Albuquerque within 700 feet of the halls of the Masonic and Knights of Columbus orders and of the Pastime Theater, and she was fined $100 and costs, from which conviction she appeals. The statute appellant was convicted of violating is as follows: “That every person who shall set up or keep a brothel, bawdyhouse, house of assignation or prostitution, in any town, city or village in the territory of New Mexico, within seven hundred feet of any schoolhouse, college, seminary or other institution of learning, or any church, opera house, theater, hall of any benevolent or fraternal society, or other place of public assemblage, shall on conviction thereof be adjudged guilty of a misdemeanor. ***” Section 1, c. 84, Laws 1901, p. 163.

Miller & Craig and W. C. Heacock, for appellant. F. W. Clancy, Atty. Gen., for the Territory.

MECHEM, J. (after stating the facts as above).

The indictment in this case contains two counts. By the first count it is charged that the defendant “did set up and keep a house of prostitution and ill fame at and within the city of Albuquerque.” Then follow averments descriptive in common-law pleading of a house of prostitution, at considerable length, and concluding with the averments that said house of prostitution was so kept and set up within 700 feet “of the regular hall and place of meeting and location of Temple Lodge No. 6, Ancient Free and Accepted Masons, being then and there a duly organized, chartered, and acting benevolent and fraternal society in said city, and did then and there willfully, wrongfully, and unlawfully set up and keep and maintain said house of prostitution and of ill fame at all the times alleged within seven hundred (700) feet of the Pastime Theater and the place of location thereof, said place of location being then and there a theater building for theatrical and dramatic exhibitions, in the said city of Albuquerque, and did then and there and at all times alleged in this indictment set up and keep and maintain said house of prostitution and of ill fame in the city of Albuquerque aforesaid within seven hundred (700) feet of the regular hall and place of meeting and the designated location of the Knights of Columbus, a duly organized, acting, and chartered benevolent society, in the city of Albuquerque, New Mexico, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of New Mexico.”

The second count is similar in all respects to the first count, except that defendant was charged with having set up and kept “a brothel, bawdyhouse, and house of assignation.” Counsel for appellants demurred to the indictment. Their demurrer was overruled, and now they renew some of their objections so taken. They argue that the allegation that defendant did set up and keep “a house of prostitution and ill fame” is not sufficient to make it certain that the act charged is the act forbidden by the statute, which prohibits the setting up and keeping of “a brothel, bawdyhouse, house of assignation or prostitution.” Counsel for appellant cite in their brief, and on the argument called our particular attention to, the opinion in Armour Packing Co. v. U. S. (8th Circuit) 82 C. C. A. 135, 153 Fed. 1, 14 L. R. A. (N. S.) 400-413, wherein Judge Sanborn states the rule that must govern this court in passing upon the sufficiency of an indictment based upon a statutory offense. The learned judge says: “It is considered that, where a crime is a statutory one, the indictment must set forth with clearness and certainty every essential element of which it is composed. It must portray the facts which the pleader claims constitute the alleged transgression so distinctly as to advise the accused of the charge which he has to meet, and to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or an acquittal in defense of another prosecution for the same offense, and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to support a conviction.” Ledbetter v. United States, 170 U. S. 606, 610, 18 Sup. Ct. 774, 42 L. Ed. 1162, 1163, and cases cited. Our statute denounces the setting up and keeping of a brothel, or a bawdyhouse, or a house of assignation, or a house of prostitution in a city, etc., within 700 feet of certain public places to be an offense, and a count in which it is charged that the defendant on a certain day, at a certain place, did unlawfully set up and keep a house of prostitution in a certain town within 700 feet of a certain theater, contrary to the form of the statute, etc., sufficiently conforms to the rule above stated, and that is the charge contained in the first count of this indictment. It is said that the first count is bad because it charges two separate and distinct offenses, to wit: “The setting up and keeping of a place prohibited by law.” The statute says: “That every person who shall set up or keep a brothel, etc.,” upon conviction shall be adjudged guilty of a misdemeanor. This court in Territory v. Eaton, 13 N. M. 79, 79 Pac. 713, adopted as the law in this territory the following statement by Bishop in his work on New Criminal Procedure (vol. 1 [4th Ed.] § 586): “If a statute makes criminal the doing of this or that or that, mentioning several things disjunctively, there is but one offense, which may be committed in different ways; and in most instances all may be charged in a single count. But the conjunction ‘and’ must ordinarily in the indictment take the place of ‘or’ in the statute; else it will be ill as being uncertain.” And the same author also...