Page:Dakota Territory Reports.djvu/396

 The jury returned a verdict of "guilty of keeping a house of ill-fame, as charged in the indictment," whereupon the defendant entered a motion for a new trial, setting forth the following grounds:

"1. Because the verdict of the jury herein is not supported by the evidence.

"2. Because the Court erred in charging the jury as follows:" [Here were set out the instructions of the Court, numbered 6 to 9, inclusive.]

This motion was overruled, and defendant sentenced to imprisonment in the county jail for the period of nine months, and to pay a fine of two hundred dollars, and the cause was removed to this court for review on writ of error.

S. L. Spinky, for defendant.

Evidence ought not to have been admitted over the objection of the defendant to show the general reputation of the house kept by said defendant. (Bishop on Crim. Pro., Vol. 2, §114; 4 Cranch, C. C, 342, 338, and 372; Brightly's Fed'l. Dig., page 231, par. 849; 14 U. S. Dig., page 275, par. 251; 17 Miss., 247.)

But if evidence of the reputation of the house was legal and proper, still the Court erred in charging the jury that "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 reported to be of lewd and lascivious character, and that it was generally reputed to be such house of ill-fame. If such be shown as above stated, you may find therefrom that it was such house of ill fame."

The questions for the jury to determine, were: 1st, was the defendant the keeper of the house in question; 2d, was the house so kept by the defendant a house of ill-fame, resorted to for purposes of prostitution and lewdness; and it was upon these points that the jury should have been satisfied beyond a reasonable doubt, before returning a verdict of conviction, and not as to the reputation of either the house or its inmates.

The charge was well calculated to mislead the jury into the belief that after they had found that the defendant was the