Page:Dakota Territory Reports.djvu/394

Rh These instructions are meaningless to us in the absence of the evidence, with reference to which they were given, or asked, and as such evidence is not before us, they cannot be considered.

All the Justices concurring, the judgment of the District Court is

1. HOUSE OF ILL-FAME: Under an indictment charging defendant with keeping a bawdy house or house of ill-fame, evidence tending to show the general reputation or character of the house kept by defendant is admissible.

2. -: -: -. The prosecution must first show that the defendant kept the house in question, and may then show its general character or reputation, and that of its frequenters and of the defendant; and if this satisfies the jury that the house was of the kind described in the statute, and indictment, they may so find, without proof of particular acts of prostitution or lewdness.

3. -: The charge may be sustained if the evidence satisfies the jury beyond all reasonable doubt that the defendant kept the house and then that it was resorted to by people of both sexes, who were reputed to be of bad and lascivious character, and that it was generally understood and reputed to be such house of ill-fame.

4. INSTRUCTIONS: An appellate court in determining the question of error in giving or refusing instructions, examine and pass upon the instructions as a whole and not in fragmentary parts, and from such examination determine whether the jury may have been misled, or the defendant prejudiced.

defendant was indicted for keeping a house of ill-fame. On the trial the prosecution having shown by a witness that girls were seen in defendant's house, who were reputed to be prostitutes, and also that the defendant was there acting as keeper, tending bar, etc., then offered to prove what the general reputation of the house was, to which offer counsel for defendant objected on the ground that the evidence sought