Page:Dakota Territory Reports.djvu/401

 Certainly if the jury were by the Court led to believe that all that was necessary to establish the defendant's guilt, was evidence that the defendant was the keeper of the house in question, and that it was a house of bad reputation in contradistinction from a house of good reputation, it would be error.

The question for the jury was not, is the house in question kept by defendant a house of bad reputation, or a house of good reputation, but was it a house of bad reputation in the sense in which it is charged in the indictment:—a house of ill fame, resorted to and visited for the purposes of prostitution?

It should be observed here that in determining the question of error in giving or refusing instructions, we must examine and pass upon the instructions as a whole and not in fragmentary parts, and from such examination determine whether the jury may have been misled, or the defendant may have been prejudiced. Applying this test, we are unable to discover that the jury could have been misled by the instructions given, to the prejudice of the defendant.

The attention of the jury is first called to the charge as contained in the indictment, which was read to them. Next they were told that every person who keeps any bawdy house, house of ill-fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, etc., is guilty of misdemeanor. Here, then, the charge against the defendant is distinctly stated by the Court to the jury.

Next, they are plainly told what the prosecution must show to make its case, and the character and class of testimony upon which they may find the house kept by the defendant, to be such house of ill-fame.

Now, what are we to understand by such house of ill-fame? Manifestly, a house of the class charged in the indictment read to the jury. A house of the character and reputation, the Court has just stated to the jury, the keeping of which was a misdemeanor.

The Court then propounds the question: "was it, or was it not generally reputed to have been such house of ill-fame?"