(dissenting):
I cannot agree in some points with Judge English’s opinion. The demurrer to the indictment was properly overruled. The first count does not charge both the offense of letting and that of permitting a house to be kept as a house of ill fame, contrary to chapter 8, Acts 1893; they being, it is true, separate offenses. The count charges that the defendants knowingly let a certain house, with intent that a certain woman should keep it as a house of ill fame, and goes on to allege that she did keep it as such, which is surplusage, as the mere letting the house for such purpose makes a complete offense; but it does not chai'ge that the defendants knowingly permitted it to be kept as such house. It charges that the woman actually kept it, not that the defendants knowingly permitted her to do so; since, for aught that appears, the defendants mig-ht not have known that she did, after the letting, keep it. It does not charge this other offense of knowingly permitting the woman to keep it, not containing the words “knowingly permit.” It would not be good for that charge. The second and third counts charge this act in th e language of the statute, and are good.
A special plea that the indictment alleges the offense on 6th day of May, and that the same day the grand jury found the indictment, was rejected. The theory is that, where an indictment is found on the same day the offense is alleged to have been committed, it is fatally defective, notwithstanding the indictment shows it was filed subsequently to the commission of the offense; citing- 10 Am. & Eng-. Enc. Law, 462, and Whart. Cr. PI. & Prac. § 120. The cases cited there do not bear out this proposition. They are where the date of offense was after the finding or the like. They do not hold the unreasonable proposition that, *529where a murder is committed in the morning-, an indictment found in the evening- of the same day is bad. S.o it charge a past offense, it is enough. This indictment does. Again, under our statute, the omission to state, or imperfect statement of, time, does not hurt an indictment. Code, c. 158, c. 10. You can state one date and prove another.
The instructions of the State were good. It is objected that one said that, if defendants knowingly let or leased the house for use as a house of ill fame, and the woman did so use the house with defendants’ knowledge, the defendants were guilty, whereas there was no evidence tending to show a lease, but a sale, as an instrument between the parties showed a sale, not a lease. But the State, under the evidence, claimed that that was a sham and device to evade the law, by showing a colorable sale, when in fact it was but a letting; that it was no sale, but a letting. That was a jury question. If it was really no sale, but a shadow; if the owner and the woman charged with keeping a house of ill fame did really intend, not a sale, b'ut an occupancy for an illegal purpose, — it was -a lease or letting for that purpose, the language of the paper to the contrary notwithstanding. Though, as between the parties to. it, the writing was undeniably a sale, yet the State was not a party to it, nor bound by it, and could show that it was, as to the State, a mere letting.
The defense com plains that the court refused an instruction that if defendants and the woman keeping the house made the written contract of sale, and for one year before indictment the woman occupied the house under that contract, ‘‘the jury must find the defendants not guilty”; thus utterly ignoring the evidence relied on by the State as tending to show that the occupant was not, in fact, in possession under the sale, but under a letting as between landlord and tenant, as before the writing, and that there was in fact'no sale, and the instruction binding the jury to acquit on the two facts alone of the execution of the writing and the occupation under it. This was wrong. Woodell v. Improvement Co., 38 W. Va. 23, syl. point 3, (17 S. E. 386); Storrs v. Feick, 24 W. Va., 606; Trust Co. v McClellan, 40 W. Va., 412, (21 S. E. 1025). A party is entitled to an instruction in his own language, if correct. Jordan v. *530City of Benwood, 42 W. Va. 312, (26 S. E. 266). But, if not correct, court is not bound to redraft or modify it. Shrewsbury v. Tufts, 41 W. Va. 212, (23 S. E. 692); State v. Caddle, 35 W. Va. 73, (12 S. E. 1098). If asked, it was the duty of the court to say that the face of the contract spoke a sale, not a lease; and if as drawn the instruction had added something to the effect, “unless the jury believe from the evidence that the sale contract was designed by its parties as a sham and fraud, to make a colorable sale to evade the law, when in fact the woman was merely a tenant,” it would have been good. It will not do to play on the words in the instruction, “under said contract of sale,” and say that it only asks an acquittal provided the jury find the woman occupied “under the contract”; ignoring the question that, though in possession under it nominally or colorably, yet it was a fraudulent sale to evade law, was in fact a putting in possession by the owner of one to keep a house of ill fame, and a violation of the statute, no matter that the entering into possession or continuing in possession was under the guise of a sale. That was a question for a jury. I think the instruction given for the State, condemned by Judge ENGLISH, touching the accessory, is plainly good.
Reversed,