As will be observed from read-the majority opinion, this cause is reversed and the judgment vacated, primarily for the following reasons: First, the trial court instructed the jury that C. S., sec. 8276, provides as follows: "Pimping defined. Any person who shall live with, or depend in whole or in part upon, the earnings of a common prostitute or woman of bad repute, shall be guilty of a felony, etc." As a matter of fact, the original act, found in the Session Laws of 1911, chap. 205, sec. 9, p. 676, does not contain the words "pimping defined" or the words "or depend." These words were inserted in the Compiled Laws by the codifier and later became a part of the Compiled Statutes. It is the view of the writer of the opinion *Page 652 of the court, which is concurred in by one of the justices, that the interpolation of the words "pimping defined" and "or depend" by the codifier of the Compiled Laws, and the subsequent adoption of the Compiled Laws by the legislature, was not a valid amendment of the original act as found in sec. 9, chap. 205, Sess. Laws 1911. Whether it was such an amendment, or whether it was merely a continuation, is to my mind, for the purposes of this case, wholly immaterial, since the appellant was not prejudiced by the action of the court in instructing the jury in the words of the Compiled Statutes. The words "Pimping defined" were used by the codifier merely as a headnote to indicate the character of the offense denounced. The words "or depend" were inserted by the codifier to clear up a manifest ambiguity in the language of the statute. The codifying act authorized him to do this.
The appellant knew what he was charged with. He failed to call the court's attention to the fact that these four words were not found in the original act. He further failed to offer a proper instruction. Conceding, without admitting, that the instruction given was erroneous, the appellant should not be permitted to take advantage of this alleged error and secure a reversal of the judgment. That appellant was clearly proven to be a person that came within the provisions of C. S., sec. 8276, cannot, in the face of the record, be denied. It was alleged in the information, and proven upon the trial, that the appellant did wilfully, unlawfully and feloniously, on the first day of June, 1923, and for a long time prior thereto, live with a common prostitute or woman of bad repute. That he so lived openly and notoriously must be admitted. The record further shows that he aided and assisted the common prostitute with whom he lived in conducting a house of prostitution in the house in which they both resided, and transported to and from the house girls who were prostitutes.
Second, the majority opinion holds that under the provisions of chap. 205, sec. 9, Sess. Laws 1911, a male person cannot be convicted of living with a common prostitute *Page 653 or woman of bad repute, which terms, as I construe the statute, are synonymous, unless it is charged in the information, not only that he lived with a common prostitute, but that he depended in whole or in part upon the earnings of the common prostitute. In other words, it is held that there are two essential elements of the offense defined by the statute, which must be alleged and proven: first, that he lived with a common prostitute and actually cohabited with her, and second, that he lived upon her earnings in whole or in part; otherwise, the information would fail to state a public offense. With this construction of the statute I find myself wholly out of accord. There are two offenses denounced by sec. 9, chap. 205, Sess Laws 1911: First, any person who shall live with a common prostitute (whether he cohabits with her or not is wholly immaterial), second, any person who depends in whole or in part upon the earnings of a common prostitute, whether he lives with her or not, is guilty of a felony. Sec. 9 is as follows:
"Any person who shall live with, in whole or in part, upon the earnings of a common prostitute, or woman of bad repute, shall be guilty of a felony."
Clearly, it was the intention of the legislature to denounce the crime of living with a common prostitute, as well as to provide adequate punishment to be inflicted upon a male person who depended in whole or in part upon the earnings of a common prostitute.
Under the allegations of the complaint in the instant case, it was entirely proper to permit the state to prove that appellant not only lived with a common prostitute, but that he actually cohabited with her. That he did both, covering a long period of time, is so clearly and conclusively established by the record that it must be conceded. There is no positive evidence that he lived upon her earnings (and he is not charged with that offense) other than proof of the fact that a cash register was kept in the house of assignation, and that when the appellant was in need of funds, he procured the same from the cash register for the purposes of *Page 654 purchasing whatever was necessary for household uses and other purposes.
I find no error in the instructions of the court given or refused, and no prejudicial error in the matter of the admission or rejection of testimony. It has been repeatedly held by this court that all errors not prejudicial to a defendant in his substantial rights must be disregarded, and that such prejudice must be affirmatively shown on appeal. Neither, as above stated, am I of the opinion that the constitutional questions discussed in the majority opinion are material or necessary for a determination of this case, but think that no useful purpose would be served by a discussion of these questions, since the legislature no doubt, in view of the majority opinion, will by proper enactment meet the objections urged to the validity of C. S., sec. 8276. The purpose of this dissenting opinion is primarily to emphasize the necessity of proper legislation in this regard.