Page:Dakota Territory Reports.djvu/399

 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."

The point here made by defendant's counsel is this:—"that the second issue upon which the jury was to pass was this: was the house so kept by the defendant a house of ill-fame, resorted to for purposes of prostitution and lewdness?"

This point, as I understand it, (although not very plainly stated), is this:—that the mere fact that the defendant was the keeper of a house of ill-fame, of bad repute, of bad character, is not per se, or of itself a crime—a misdemeanor. But that in addition to the fact that the house is of ill-fame, it must further appear that such house of ill-fame was kept as a place for persons to visit for unlawful sexual intercourse or prostitution. The fact that the defendant's house was a house of ill-fame must be charged in the indictment (as it in fact is), and that the proof must sustain that charge beyond a reasonable doubt. That the fact that defendant's house of ill-fame was so kept for persons to visit for unlawful sexual intercourse or prostitution, was a necessary averment in the indictment, and must be established by evidence beyond a reasonable doubt. And defendant's counsel insists that these issues, the two last, were not with appropriate instructions by the Court, submitted to the jury, but that the instructions upon these issues were erroneous.

It is proper to observe here that we are not examining the record in this case for the purpose of ascertaining whether other more full and perfect instructions might not have been submitted to the jury, had the defendant's counsel at the proper time asked for such other or more definite instructions; we will only examine such questions as are presented by the bill of exceptions, and have been passed upon in the court below.

It is conceded that the instruction was proper so far as it submits to the jury the proof necessary to show proprietor-