Ex parte Birchfield , 52 Ala. 377 ( 1875 )

MANNING, J.

The petitioner was indicted and found guilty of keeping a house of ill-fame, or bawdy-house, for which the jury assessed against her a fine of two hundred dollars ; and this and the costs of the prosecution not being paid, the court sentenced her to hard labor for over four hundred days.

In doing this, it is insisted that the court exceeded its jurisdiction ; that the penalty for this offence is prescribed by section 3630 of the Revised Code, and is much lighter than the penalty imposed on her; and application is thereupon made for a writ of prohibition to the judge of the court in which she was tried, to prevent the execution of the sentence against her.

The prosecution was for an offence punishable by the common law, and was indictable under section 3754 of the Revised Code, unless the punishment therefor is “ particularly specified ” in the Code. The only section in which this is supposed to be done is § 3630, headed “ vagrancy.”

In this it is enacted, that a person who is a common prostitute, or the keeper of a house of prostitution, and has no honest employment whereby to maintain herself, must, on conviction, for the first offence be fined not less than ten, nor more than fifty dollars. This evidently does not prohibit a prosecution for the common law offence of keeping a bawdy-house, or house of prostitution. If it did, then a person who was in good circumstances, and had money to lend, and was engaged in some “ honest employment ” whereby he or she could be maintained, and was, therefore, the more clearly inexcusable for being concerned in such an evil business, might keep a house of ill-fame with impunity. We cannot give to this provision of the Code, an interpretation that would lead to such a conclusion.

Under section 3754 of the Revised Code, a fine not exceeding five hundred dollars may be imposed upon one convicted of the offence with which the indictment charges this petitioner; and if the fine and costs be not paid, imprisonment may be substituted by the court, according to section 3760 of the Revised Code. .

The application for a writ of prohibition is denied.