The State v. Lee

• Decision Date: 14 May 1890
• Citation: 45 N.W. 545,80 Iowa 75
• Parties: THE STATE v. LEE
• Court: Iowa Supreme Court

45 N.W. 545

80 Iowa 75

THE STATE v. LEE

Supreme Court of Iowa, Des Moines

May 14, 1890

Decided May, 1890.

Appeal from Clinton District Court.--HON. C. M. WATERMAN, Judge.

THE defendant was indicted for the crime of keeping a house of ill-fame, tried by a jury, and found guilty. From the judgment rendered on the verdict he appeals.

AFFIRMED.

Hayes & Schuyler, for appellant.

John Y Stone, Attorney General, and A. R. McCoy, County Attorney for the State.

OPINION

ROBINSON, J.

The indictment charges that the alleged crime was committed in Clinton county, as follows: "The said Harry Lee, on the twenty-fifth day of April, A. D. 1887, in the county aforesaid, did unlawfully and feloniously keep a house of ill-fame, resorted to by divers persons to the grand jury unknown, for the purpose of prostitution and lewdness." The defendant at the time in question occupied the first and a part of the second floor of a building in the city of Clinton. The two floors were connected by means of outside stairways. The front room of the first floor was used as a billiard hall, and the back room on the same floor was used as a saloon. From that a small room was partitioned off, which was used for various purposes connected with the business. The part of the second floor occupied by defendant comprised two rooms, one of which was used for drinking and gaming purposes, and the other was furnished and occupied as a bedroom by an employe of defendant. The evidence tends to show that the saloon and upper rooms occupied by defendant were resorted to by men and women of lewd character.

I. Several witnesses for the state testified that the general reputation of the place was that of a house of ill-fame. On cross-examination, some of them stated that among those who had spoken of the place in their hearing were traveling men who did not reside in Clinton. Defendant objected to testimony as to the statements of such men, on the ground that they were not competent to make statements upon which the reputation of the place could be to any extent founded. But we think the testimony in question was competent. Traveling men who frequently visit a city may acquire as reliable information in regard to places of business, and the nature of the business transacted therein, as that possessed by its citizens. Many traveling men are required, by the nature and purpose of their employment, to investigate the habits of business men, and the business in which they are engaged. The value of their statements would depend upon their means of obtaining accurate knowledge, and that would be a proper matter for the consideration of the jury; but their statements might be proper for the witness to take into account in stating the general reputation of the person or place to which they referred.

II. The defendant introduced a number of witnesses, who testified, in effect, that the place of defendant did not have the reputation of being a house of ill-fame at the time in question. On cross-examination, they were asked whether they were married men; what interest they had in lewd women and houses of ill-fame; whether they had sons old enough to visit such places; whether they had talked with others in regard to such houses; and similar questions. The questions asked were designed to test the means of knowledge of the witnesses, and it was intended to show by the answers that their occupations, habits, interests and relations were such that they would not be apt to hear the character of the defendant's place of business discussed. We think questions of that kind were proper, within reasonable limits, for the purpose stated, and we find no error in allowing those of which complaint is made.

III. During the progress of the trial defendant asked that the state be compelled to elect whether to proceed on the theory that the house of ill-fame in question was located in the first story of the building occupied by defendant, or in the second story. But one act of sexual intercourse was proven, and that occurred in the small room adjoining the saloon, in the first story. The evidence tended to show that the rooms of defendant in both stories were frequented by men and women of lewd character, but the appellant contends that there was no internal communication between the two stories, and, therefore, for the purposes of this case, they should have been treated as distinct buildings. It is true the rooms of defendant were used ostensibly for different purposes, but all were so used, and the business carried on in each was so related to the business carried on in the others, that all the rooms were really occupied together for the purposes of carrying on a business which was subdivided into branches. The rooms in the second story occupied by defendant were accessible from the first story by means of a covered stairway used specially by defendant and the frequenters of his place of business. There was also an elevator, by means of which liquor and other articles were sent from the saloon to the rooms of defendant in the second story; thus affording direct internal communication between the various rooms in the two stories used by defendant. It is clear that these rooms were properly treated as constituting but one building, and that the court rightly refused to compel the state to make the election demanded.

IV. It is objected by appellant that the state failed to show that he kept the place in question as a house of ill-fame, for the purpose of gain; but the statute does not make that a necessary element of the crime, and it was not necessary to prove it. 1 Bish. Crim. Law, sec. 1038.

V. The evidence in regard to the general reputation of the place in question was conflicting. A majority of the witnesses who testified in regard to it said, in effect, that it did not have the reputation of being a house of ill-fame, and appellant contends that the bad reputation of the place was not established by a great preponderance of the evidence. The court instructed the jury, in effect, that it was not necessary to prove that the general reputation of the place was bad, if the testimony showed that it was in fact a house of ill-fame. Appellant insists that the court erred in so instructing the jury, and relies upon the case of State v. Haberle, 72 Iowa 138, 33 N.W. 461, as supporting his claim. The question thus presented is whether the statute is violated by the keeping of a house which is resorted to for the purpose of prostitution or lewdness, but which is not generally reputed to be a house of that character. The object of the statute is not to protect the reputation of the house, but to cherish and promote good morals. 1 Bish. Crim. Law, secs. 665, 947, 1038; Commonwealth v. Lambert, 12 Allen 177. The evil influence of a bawdy-house is not necessarily measured by its reputation in the community where it exists. It was said in the case of State v. Lyon, 39 Iowa 379, that evidence to prove the general reputation of the house for prostitution and lewdness was properly excluded; that the house gets its character from that of the inmates, and those who resort to it, and that evidence that such persons are of bad character is competent to establish the bad character of the house. It is true that was a case of prosecution for the crime of leasing a house for the purposes of prostitution and lewdness, but what was therein said in regard to proving the general reputation of the house was applicable to prosecutions of this kind under section 4013 of the Code, as it then existed. Chapter 142 of the Acts of the Twentieth General Assembly repealed that section, and enacted a substitute therefor, but the change thereby made relates only to the punishment, the new statute using the language of the old in describing the offense. Section 4 of the act of 1884 referred to, is as follows: "The state, upon the trial of any person indicted for keeping a house of ill-fame, may, for the purpose of establishing the character of the house kept by defendant, introduce evidence of the general reputation of such house as so kept, and such evidence shall be competent for such purpose." In our opinion, this section was not designed to add to the ingredients of the crime, by requiring that the house should be generally reputed to be...