Toney v. State , 60 Ala. 97 ( 1877 )

BRICKELL, C. J.

The indictment contains three counts; the first charging, that the defendant “did keep a certain house of ill fame, then and there resorted to for the purpose of public prostitution and lewdness;” tbe second charging, that she “was a common prostitute, or the keeper of a house of prostitution, and had no honest employment, whereby to maintain herselfthe third charging, that she was “a common prostitute, or the keeper of a house of prostitution.” The first count charges the common-law misdemeanor of keeping a bawdy-house. The second is a count for vagrancy, under the statute. — R. C. § 3630; Code 1876, § 4218. The' third is not a sufficient charge of any offense, either at common law, or under the statute. There was, however, no demurrer to it, and the verdict must be referred to the counts which are good.

In no aspect of the case, was it permissible to give evidence of the reputation of the house in which the defendant lived. To support the first count, it Was permissible for the State to prove the reputation of the inmates of the house. Wooster v. State, at last term. This count could not, however, be sustained, without proof that the defendant governed and managed, or aided and assisted in governing and managing the house. It is not enough that she was an inmate of the house, and there for the purposes of prostitution. The offense consists in keeping a house of ill fame, resorted to for the purposes of prostitution, not in residing in such house,, without having control over it. .

The second count could be supported only by proof that the defendant was a common prostitute, arid had no honest employment whereby to maintain herself. The two facts must concur, and must be shown by legal evidence. The bad character of the defendant is not admissible, in the first instance, as a fact showing she was a common prostitute. State v. Hurd, 7 Iowa, 411. It may be shown that she resided in a house kept for prostitution; that she was visited by lewd and disorderly persons, and that her associates were persons of ill repute. These are all facts, tending to show she was a common prostitute ; and their sufficiency to prove the fact is for the consideration and determination of the jury. All unfavorable inferences, arising from these facts, it was permissible for the defendant to remove, so far as the jury may regard them as removed, by evidence that her health and physical condition rendered prostitution improbable, if not impossible.

It is unnecessary to extend this opinion by an application of these rules to the several rulings of the County Court. They were inconsistent with them, and the judgment must be reversed, and the cause remanded; the prisoner remaining in custody until discharged by due course of law.