State v. Anderson

This case was before us at a former term, when a new trial was granted for errors in the charge of the court to the jury. State v. Anderson, 82 Conn. 111,72 A. 648.

Upon the second trial the accused was found guilty, and a fine of $50 and costs, taxed at $108.27, was imposed.

The present appeal is upon the ground that the court erred in overruling the demurrer filed after the new trial was granted.

The grounds of the demurrer, stated in substance, are that the information is uncertain; that it states two distinct offenses, namely, keeping a house of prostitution, and keeping a house reputed to be such; and that the statute upon which the information is based, namely, § 1316 of the General Statutes as amended by chapter 122 of the Public Acts of 1907, p. 674, contravenes the provisions of Article First, §§ 1, 9 and 21, of the Constitution of Connecticut, and the Fifth, Sixth, and Fourteenth amendments of the Federal Constitution.

We held in our former decision that the information charged but a single offense, namely, that the accused, on the day named, was the keeper of a certain house, which was in fact, and was reputed to be, a house of ill-fame; that under this information she could only be lawfully convicted of having kept a house which was in fact a house of prostitution; that we had no occasion to decide whether she could have been lawfully convicted under an information charging her only with having kept a house reputed to be a house of ill-fame; and that the information was not open to any of the objections raised by the demurrer.

We have no occasion to change our former decision. In so far as the statute under consideration permits a conviction for the offense of keeping a house which is in fact a house of prostitution, which, as we have said, is the only offense with which this accused is charged, it is not unconstitutional. Whether it contravenes the State or Federal constitutions, or both, in permitting a conviction for an offense which we have held is not the offense charged in this information, and of which this accused could not therefore have been convicted in the court below, namely, the keeping of a house merely reputed to be a house of prostitution, we have no occasion at present to decide.

But the accused claims that the statute violates the provisions of both the State and Federal constitution because it permits a conviction of the offense of keeping a house which is in fact a house of prostitution, upon proof that it is reputed to be such a house.

It is true that we have held, as was said in our former decision: "Upon such proof of reputation, in the absence of any other evidence of the true character of the place, the jury may convict the accused of keeping a house or place which is in fact of the character that it is reputed to be. When such evidence of reputation is offered it must, either by itself or in connection with other evidence, be sufficient to satisfy the jury beyond a reasonable doubt that the reputed character of the house or place in question was its true character. When evidence of the reputed character of the place is offered, it may always be met by evidence that such is not the real character of the place, and however complete may be the proof of reputation, there can be no conviction if it appears that the house or place is not in fact kept or used for the reputed immoral or unlawful purposes."State v. Anderson, 82 Conn. 111, 114, 72 A. 648.

The adoption of such a rule of evidence in this State does not render the statute upon which the information is based, nor the method or proceedings by which the accused was convicted, unconstitutional as claimed. It is, however, unnecessary to pursue the discussion of that subject in this case, since it does not appear that that rule was invoked upon the second trial. We have no finding before us showing what evidence was offered, or what rulings were made, or what instructions were given to the jury. It is entirely consistent with the record before us, that no evidence whatever of reputation was offered by the State. If no such evidence was offered, the court had no occasion to charge the jury that the State could establish a prima facie case by proof of reputation only, and presumably did not. For aught that appears from the record, the accused was properly convicted upon direct evidence only — without the introduction of any evidence of reputation — that she kept a house which was in fact a house of prostitution.

There is no error.

In this opinion the other judges concurred.