Page:Dakota Territory Reports.djvu/398

, J.—This case is before the court for review, a writ of error having been sued out by defendant, who stands convicted in the Second District court for Yankton County of keeping a bawdy house, or house of ill-fame, to remove the case to this court.

The indictment charges the defendant with keeping a house of ill-fame, resorted to and visited by divers persons of both sexes, for purposes of unlawful sexual intercourse, lewdness, etc. (See § 371, page 781, Revised Code.)

The first error assigned is this: that the Court erred in admitting evidence to show the general reputation or character of the house kept by defendant.

In disposing of this question, it is understood as the fact appears, that the defendant was the proprietor or keeper of the house in question. That fact being established, both upon principle and authority, we think the testimony competent. Acts of adultery, acts of lewdness, acts of prostitution, are not acts to which the perpetrators give publicity or notoriety. Shameless and degraded indeed must this class of criminals be, who will not by all the means within their power conceal and hide their shame. Nor is it a crime which ordinarily will be attended with such circumstances as is calculated to lead to exposure and detection.

No immediate death or fatal shot will invite public attention to the criminals. From the necessity of the case, therefore, we are unanimously of the opinion that this testimony was properly received.

In State v. Burrell, 29 Wis., 435, the Court say: Prosecution must first phow 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. The court below appears to have been governed (and we think properly) by this decision.

The second point will be more clearly understood by here inserting the following instructions: "The charge may be