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District of Alaska, approved April 28, 1904, repealed the act of Congress of March 3, 1899, 30 Stat. 1253, c. 429, entitled “An act to define and punish crimes in the District of Alaska,” in so far as the said act of March 3, 1899, related to the offense of gambling, where said offense is committed within the limits of incorporated towns, and where such incorporated towns have enacted ordinances defining the offense of gambling, and where such ordinances are in force, as in the case of the city of Nome. The legal question involved is the same as that presented and decided in the case of Mose Rosencranz v. United States, 155 Fed. 38, and the conclusion there reached, that Congress under the act of April 28, 1904, c. 1778, 33 Stat. 529, did not intend to yield its authority over the subjects of gambling and other offenses enumerated, must control here. The argument that by the act of 1904 Congress intended to increase greatly the powers of town councils is sound until it is invoked to sustain the conclusion that the power conferred upon the municipality is inconsistent with the reservation of power by the United States. It then fails, for as we have shown in the Rosencranz Case, there is no repugnancy between the two acts, and in the absence of expressed or clearly implied terms that the jurisdiction should be exclusively in the municipalities we cannot find a surrender of the jurisdiction of the United States. Not finding such surrender, we cannot infer it merely upon the ground of a possible double prosecution. Cross v. North Carolina, 132 U. S. 131, 10 Sup. Ct. 47, 33 L. Ed. 287; Bishop on Statutory Crimes, § 24; Fox v. Ohio, 5 How. 410, 12 L. Ed. 213.

Plaintiff in error also contends that the court erred in refusing to instruct the jury in writing when requested by the defendant. Section 137 of the Penal Code of Alaska provides :

Subd. 5. "When the evidence is concluded, either party may request instructions to the jury on points of law, which shall be given or refused by the court; which instructions shall be reduced to writing if either party request it.”

Subd. 7. "The court, after the argument is concluded, shall immediately, and before proceeding with other business, charge the jury; which charge, or any charge, given after the conclusion of the argument, shall be reduced to writing by the court, if either party request it before the argument of the trial is commenced ; such charge or charges, or any other charge or instructions provided for in this section, when so written and given, shall in no case be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jury in their retirement, and returned with their verdict into court, and shall remain on file with papers of the case."

The bill of exceptions does not show that the plaintiff in error requested the court to charge the jury in writing; but sets forth that the counsel for the plaintiff in error, just before the government rested its case, requested the court "in charging the jury to charge the jury according to defendant's written requests numbered 1 and 2.” The purport of counsel's request and of his exception was therefore, not that the court should charge in the form of a written instruction, but that the substance of the written requests should be stated as the law to the jury, without regard to any particular form. Argument of the case was waived by defendant. The court then charged the jury orally. After the judge had delivered his charge, counsel for the defendant

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for the first time stated that he took exceptions "to the oral instructions given by the court and the refusal of the court to charge the jury in writing.” But, as said, the only request made before argument to the court having been that the jury should be charged "according to the defendant's written requests numbered 1 and 2," plaintiff cannot now urge that his rights were prejudiced by the omission of the court to deliver a written charge. Under no circumstances, however, could the plaintiff in error have been prejudiced by the failure of the court to charge the jury in writing, inasmuch as his two requests related entirely to the question of jurisdiction, which had been previously properly passed upon by the court in overruling his demurrer and plea in abatement.

We find no error in the record, and the judgment is affirmed.

BOTTS et al. v. UNITED STATES.
(Circuit Court of Appeals, Ninth Circuit. May 27, 1907.)

No. 1,406.
DISORDERLY HOUSE-PROSECUTION FOR KEEPING-PROOF OF CHARACTER OF

HOUSE.

Although Alaska Pen. Code, $ 128, expressly makes common fame competent evidence in support of an indictment for keeping a bawdyhouse for purposes of prostitution, such evidence alone is not sufficient proof to warrant a conviction, but there must be some evidence that the house was in fact kept and used for such purposes. Such evidence need not, however, be direct, but may be circumstantial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Disorderly House, 88 26–29.] In Error to the District Court of the United States for the Second Division of the District of Alaska.

The plaintiffs in error, Lloyd Botts and James Haughey, were indicted by the grand jury of the District of Alaska for the crime of keeping a bawdyhouse for purposes of prostitution therein. The plaintiffs in error interposed pleas in abatement, alleging facts upon which the contention was made that the municipal court in and for the city of Nome, Alaska, had exclusive jurisdiction of the offense charged in the indictment, and that the District Court of the District of Alaska, Second Division, had no jurisdiction of said offense. Plaintiffs in error also filed demurrers to the indictment, raising the same questions of jurisdiction. The court overruled the pleas in abatement and the demurrers. Trial was had, and a verdict of guilty rendered. The plaintiffs in error were sentenced to imprisonment for the period of one year. writ of error is prosecuted to obtain a review of the proceedings and rulings of the lower court, and to set aside the judgment of conviction, and to have the indictment dismissed and a new trial ordered.

W. H. Bard, James W. Bell, C. D. Murane, Hobbes & Bell, and James E. Fenton, for plaintiffs in error.

Henry M. Hoyt, U. S. Atty:

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

HUNT, District Judge, after making the foregoing statement of the case, delivered the opinion of the court.

The same question of jurisdiction is presented by this writ of error that has been decided in the case of Rosencranz v. United States, 155 Fed. 38, and for the reasons announced in the opinion filed therein we affirm the action of the lower court overruling the pleas in abatement and the demurrers, and pass to the consideration of other points.

The record shows that the prosecution was conducted upon the theory that if the government proved that the reputation of the house situated upon the lot described in the indictment was that it was a bawdyhouse, and that if defendants as owners knew of such reputation, and with such knowledge received rentals from the occupant, they themselves became keepers of a bawdyhouse for purposes of prostitution, and were liable to punishment as such keepers. Upon this theory the court instructed the jury:

"That in all prosecutions for the offense of keeping a bawdyhouse, common fame or reputation is competent evidence in support of the indictment as to. the character of the house. Therefore, if the house has the reputation of being a bawdyhouse or house of ill fame, beyond a reasonable doubt, that is sufficient to support a finding that it is such, if there is no evidence offered to the contrary."

The court refused to give in substance, or at all, an instruction requested by defendant that"under the statute common fame is made competent evidence of the character of the house in question, but reputation or fame alone is not sufficient evidence to warrant a conviction for keeping a bawdy house; there must be some other evidence showing that the house is actually used as a bawdyhouse for purposes of prostitution.”

The question for decision, therefore, is whether evidence of the general reputation of a house is sufficient proof of its being bawdy and used for prostitution, or whether besides the ill repute of the house, some other evidence is necessary in order to justify the inference that it is bawdy. It is laid down that under the common law, evidence of the general reputation of the house would be inadmissible upon the issue of whether the house is a bawdy one. 14 Cyc. 503; State v. Plant, 32 Atl. 237, 67 Vt. 454, 48 Am. St. Rep. 821. But by statute, section 128, Alaska Code, “common fame” is expressly made competent evidence in support of an indictment such as we find in the present case. So that there is no room for contention that such evidence was inadmissible altogether, the point being, was it alone sufficient proof to sustain a conclusion that the house was in fact a bawdy one for purposes of prostitution? We must answer the question in the negative.

Undoubtedly there are some cases which hold that, where the evidence shows that a house is by general repute a bawdyhouse, the jury may find from such evidence alone that as a fact it is a bawdyhouse and used for immoral purposes. But where the offense charged is keeping a house of ill fame for purposes of prostitution, we believe there should be some evidence of the purpose or use for which the house was kept, besides that of common fame. If reputation alone is enough, then one may be tried and convicted of keeping a house commonly said to be a bawdyhouse for purposes of prostitution regardless of the question whether or not the house involved in the inquiry is in fact bawdy and used for such immoral purposes. On principle such a rule would be dangerous, and we must decline to approve it. There should be some additional evidence of the immoral purposes for which the house is kept; and, while it may not seem always easy to obtain testimony of such purposes, as a practical affair it ought not to be difficult, provided the reputation is based upon facts. The very same circumstances that have given a place its ill repute would ordinarily be ample additional evidence of the uses made of the house and the purposes for which it is kept. If men are seen going at unusual hours into a house where only women live; if obscene language and profanity are heard in the house; if drinking and boisterous conduct occur therein; if women clad in an unseemly way are about the premises; and if the women who live in the house are themselves reputed to be prostitutes—these are all circumstances which, when considered with the general reputation of the place, justify the conclusion that such a house is kept for purposes of prostitution. Drake v. State, 17 N. W. 117, 14 Neb. 535; State v. Steen, 101 N. W. 96, 125 Iowa, 307; State v. Hendricks, 15 Mont. 194, 39 Pac. 93, 48 Am. St. Rep. 666; State v. Boardman, 64 Me. 523; Toney v. State, 60 Ala. 97; 14 Cyc. 510; Greenleaf on Evidence, § 186. These views dispose of the case, and necessarily lead to a reversal because of substantial error in the charge of the court.

The judgment is reversed, and the cause remanded for a new trial.

HALL V. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. May 27, 1907.)

No. 1,405.

DISORDERLY HOUSE-PROSECUTION FOR KEEPING-PROOF OF CHARACTER OF

HOUSE.

Although Alaska Pen. Code, $ 128, expressly makes common fame competent evidence in support of an indictment for keeping a bawdyhouse for purposes of prostitution, such evidence alone is not sufficient proof to warrant a conviction, but there must be some evidence that the house was in fact kept and used for such purposes.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Disorderly House, $$ 26–29.]

In Error to the District Court of the United States for the Second Division of the District of Alaska.

Plaintiff in error, defendant below, was tried and convicted under an indictment charging him with keeping and setting up a bawdyhouse for purposes of prostitution within the limits of the town of Nome, Alaska, the indictment being framed under section 127, tit. 1, of the Act of Congress, approved March 3, 1899, 30 Stat. 1272, which provides that if any person shall keep or set up a house of ill fame, brothel, or bawdyhouse for the purpose of prostitution, fornication, or lewdness, such person upon conviction thereof shall be punished by imprisonment in the county jail not less than three months nor more than one year, or by fine not less than $100 nor more than $500. Defendant sued out a writ of error, and has assigned errors based upon rulings of the lower court and the instructions given to the jury.

Jas. W. Bell, C. D. Morane, Hobbes & Bell, A. H. Elliot, W. H. Bard, and James E. Fenton, for plaintiff in error.

Henry M. Hoyt, U. S. Atty.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

HUNT, District Judge, after making the foregoing statement of the case, delivered the opinion of the court.

Plaintiff in error first presents the same question of jurisdiction that we have considered and decided in the case of Rosencranz v. United States, 155 Fed. 38; Hornstein v. United States, 155 Fed. 48, and Botts v. United States, 155 Fed. 50. Upon the authority of those decisions we hold that the District Court for the District of Alaska had jurisdiction of the case, and that it properly overruled the plea and demurrer.

In this case, as in that of Botts and Haughey v. United States (just decided by this court) 155 Fed. 50, error is assigned upon the charge of the court that, “in all prosecutions for the offense of keeping a bawdyhouse, common fame or reputation is competent evidence in support of the indictment as to the character of the house. Therefore, if the house has the reputation of being a bawdyhouse or house of ill fame beyond a reasonable doubt, that is sufficient to support a finding that it was such, and if there is no evidence offered to the contrary.

This was an erroneous statement of the law, as we have shown in the case of United States v. Bötts and Haughey, supra, in that it authorized a conclusion upon one of the essential elements of the charge against the defendant upon a quantum of proof less than the law demands. It is not possible to regard the error as cured or without prejudice. The jury were not only directed that they could predicate a finding upon the measure of proof prescribed by the instruction, but the evidence in the record shows that proof of the reputation alone of the house alleged to have been kept by defendant was relied upon as sufficient, and that no evidence of use or purpose other than reputation was considered necessary.

Moreover, the plaintiff in error requested a charge that reputation or fame, while competent, was by itself “not sufficient evidence to warrant a conviction for keeping a bawdyhouse; there must be some other evidence showing that the house is actually used as a bawdyhouse”; but the court, consistent with its rulings throughout the trial, refused so to charge. Inasmuch as our opinion in United States v. Botts and Haughey, supra, covers the point under consideration, we do not deem it necessary to repeat the views we there laid down. We advise that upon a new trial the court reform its definition of a reasonable doubt so as to avoid the double definition which was given substantially in language which was criticised by this court in Owen v. United States, 130 Fed. 279, 64 C. C. A. 525.

The judgment is reversed, and the cause remanded for a new trial.

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