Whitlock v. The State

• Decision Date: 01 April 1892
• Docket Number: 501
• Citation: 30 N.E. 934,4 Ind.App. 432
• Parties: WHITLOCK v. THE STATE
• Court: Indiana Appellate Court

30 N.E. 934

4 Ind.App. 432

WHITLOCK v. THE STATE

No. 501

Court of Appeals of Indiana

April 1, 1892

From the Sullivan Circuit Court.

Judgment affirmed, with costs.

J. S Bays, for appellant.

W. L Slinkard, Prosecuting Attorney, and C. D. Hunt, for the State.

OPINION

NEW, J.

The appellant was indicted under the first clause of section 1994, R. S. 1881. That section reads as follows:

"Whoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness; or knowingly lets a house to be so kept; or knowingly permits a house which he has let to be so kept,--shall be fined not more than one hundred dollars nor less than ten dollars, to which may be added imprisonment in the county jail not exceeding six months."

There was a trial by jury and verdict of guilty, fixing the punishment at $ 25. Judgment was rendered upon the verdict over a motion for a new trial.

The appellant has assigned as error the overruling of a motion to quash the indictment, and the overruling of the motion for a new trial.

Counsel for the appellant does not, in his brief, question the sufficiency of the indictment. The assignment of error relating thereto is therefore waived.

The only questions discussed by counsel relate to the evidence and arise upon the motion for a new trial.

It is claimed by counsel for the appellant that the court erred in permitting the State to prove that the appellant's reputation for chastity was bad in the community in which she lived.

If the prosecution was not upon the first clause of the statute quoted, we might hesitate to hold that this evidence was proper, but as it is it would seem to be competent. The character of the house in such cases may be shown by proving actual lewd conduct therein, or it may be proved by circumstances. If the accused be a prostitute herself, in personal possession and occupation of the house, keeping it herself and for herself, the fact that she was a prostitute would certainly be a circumstance proper to be considered by the jury in determining whether the house was being kept by her as a house of ill-fame, and resorted to for the purpose of prostitution and lewdness.

In Betts v. State, 93 Ind. 375, which was a prosecution on the same clause of the statute involved in the present case, it was held that the fact that the house was reputed to be one of ill-fame, as also that those persons who frequented it, and the defendant, were persons of bad character for chastity and virtue were circumstances proper to be considered by the jury.

In State v. Brunell, 29 Wis. 435, the court said:

"We think the correct rule of evidence in this case and in like cases, is, that the prosecution must in the first instance introduce testimony showing or tending to show that the defendant is the keeper of the house alleged to be a common bawdy house; and then testimony of the general reputation of the house, of the persons frequenting the same, and of the defendant, is admissible, as tending to show the real character of the house. The prosecution is not required to show particular acts of lewdness or prostitution in the house. If the evidence demonstrates that it is resorted to by people of both sexes who are reputed to be of lewd and lascivious character, and that it is generally reputed to be a bawdy house, the jury are authorized, if they see fit, to find therefrom that it is a bawdy house. And the more especially are they authorized so to find, if it further appears that the general reputation of the keeper of the house is as bad as the reputation of those who frequent it."

The State was also permitted to prove, over the appellant's...