Page:Dakota Territory Reports.djvu/400

 ship of the house. Bat the words claimed as erroneous are the following: "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 reputed to be such house of ill-fame." Now observe what follows:

"If such be shown as above stated, you may find therefrom that it was such house of ill-fame." In other words and fairly interpreted, the Court say: Applying the rule as to reasonable doubt as above given, then if you find that the defendant's house was resorted to by persons of both sexes, who were reputed to be of bad and lascivious character, and that it was generally reputed to be such house of ill-fame; then from such evidence, being governed by the rules given by the Court, you may so find—that is to say, you may from that evidence find the house to be a house of ill-fame, for persons of both sexes to visit for unlawful sexual intercourse and prostitution, a house of ill-fame of the character charged in the indictment.

I am unable to discover any error in the instructions given on these points. It is distinctly saying to the jury, that the prosecution may prove the character of the house by proof of the general reputation of the persons visiting it, keeping it, and of the house itself.

Had defendant's counsel wished more definite or specific instructions upon the question of reasonable doubt, as applied to particular issues, he should have so requested at the proper time. Then if refused and excepted to, such refusal would have been before this court for review.

The only remaining question presented for our consideration, and forcibly urged upon the argument, is to the following language or part of the instruction: "A house of ill-fame is a house of bad reputation. I suppose you all well know the meanings of the words good reputaiion, and of the other words bad reputation."

The skill and aptitude of defendant's counsel upon the argument in disintegrating and separating the different parts of the instructions, impressed me strongly that here was a fatal error.