Page:Dakota Territory Reports.djvu/397

 keeper of the house, then their only other inquiry should be as to the reputation of the people who resorted to it, and the reputation of the house itself, and if they found them bad, they should convict, especially as the Court, nowhere in his charge, told the jury that they must be satisfied beyond a reasonable doubt that the house was actually a house of ill-fame or bawdy-house, but all the time directed their attention to the question of reputation. (State v. Burnell, 29 Wis., 435; State v. Hand, 7 Iowa, 411.)

The indictment having alleged that the house in question was resorted to for purposes of prostitution and lewdness, it was incumbent upon the prosecution to prove this fact before the jury were justified in convicting. (Brightly's Fed. Dig., page 212, par. 320; 3 Day, 283.)

The Court erred in charging the jury that "a house of ill-fame is a house of bad reputation."

The defendant in this case was charged with being the keeper of a house of ill-fame, and if the definition of the words given by the Court is correct, then if the jury found the defendant to be the keeper, and that the reputation of the house was bad, they were bound to convict. But such is not the correct definition of the words, as used in the statute. A house of "ill-fame" means a bawdy-house, not a house that has the reputation of being a bawdy-house.

The definition of the words, "house of ill-fame", taken in connection with the balance of the charge, necessarily led the jury to the conclusion that if they found that the defendant was the keeper, and that the reputation of the house was bad, they were bound to convict, which was manifest error. (State v. Burnell, 29 Wis., 435; State v. Handy, 7 Iowa, 411; 2 Archibald Cr. Law, 1007.)

''Phil. K. Faulk'', District Attorney, for the Territory.

Cited and relied on the following authorities: 29 Wis., 435; 7 Iowa, 411; 1 Bishop's Crim. Law, § 1088; 2 Parker's Crim. R., 87.