Gavin v. State ( 1909 )

Mayes, J.,

delivered tbe opinion of tbe court.

The only question in this case which we deem necessary to-discuss is whether or not, under section 5055 of tbe Code of 1906, wherein it is provided that “every keeper of a bouse of prostitution shall be punished as a vagrant,” excludes tbe right to prosecute such person for keeping a bawdy bouse.

It is urged by counsel for appellant that, since tbe adoption-of the section above quoted, there can be no indictment of a person as a bawdy bouse keeper, but that in every such case-such person must now be indicted only as a vagrant. We do not think this contention can bo maintained. Tbe common law-still prevails in this state, where not abrogated by statute, and offenses which were such under the common law are still indictable and punishable, and keeping a bawdy house was an offense-at common law, and not abrogated by our statute. One may be-indicted for keeping a bawdy house, which is one offense against the laws of the state, and, again, may also be indicted as a-vagrant,' which is another substantive offense. The keeper of a bawdy house offends the law in allowing, permitting, and encouraging lewd, indecent, and immoral practices; and, when-charged with being the keeper of a bawdy house, this is the thing for which the party is punished. In vagrancy, the offense consist-s in general worthlessness; that is to say, in being-idle, and, though able to work, refusing to do so, and living-without labor, or on the charity of others. It .is thus seen thair these two offenses are as distinct as the night and day.

Affirmed~