— The indictment charges that the alleged crime was committed in Clinton county, as follows : “The said Harry Lee, on the twenty-fifth day of April, A. D. 1887, in the county aforesaid; did unlawfully and feloniously keep a house of ill-fame, resorted to by divers persons to the grand jury unknown, for the purpose of prostitution and lewdness.” The defendant at the time in question occupied the first and a part of the second floor of a building in the city of Clinton. The two floors were connected by means of outside stairways. The front room of the first floor Was used as a billiard hall, and the back-room on the same floor was used as a saloon. From that a small room was partitioned off, which was used for various purposes connected with the business. The part of the second floor occupied by defendant comprised two rooms, one of which was used for drinking and gaming purposes, and the other was furnished and occupied as a bedroom by an employe of defendant. The evidence tends to show that the saloon and upper rooms occupied by defendant were resorted to by men and women of lewd character.
1. House of illfame: reputaion: evidence. I. Several witnesses for the state testified that the general reputation of the place was that of a house of ill-fame- On cross-examination, some of ^em stated that among those who had spoken of the place in their hearing were traveling men who did not reside in Clinton. Defendant objected to testimony as to the statements of such men, on the ground that they were not competent to make statements upon which the reputation of the place could be to any extent founded. But we think the testimony in question was competent. Traveling men who frequently visit a city may acquire as reliable information in regard to places of business, and the
he same. II. The defendant introduced a number of witnesses, who testified, in effect, that the place of defendant did not have the reputation of being a house ^ ill-fame at the time in question. On cross-examination, they were asked, whether they were married men; what interest they had in lewd women and houses of ill-fame ; whether they had sons old enough to visit such places ; whether they had talked with others in regard to such houses; and similar questions. The questions asked were designed to test the means of knowledge of the witnesses, and it was intended to show by the answers that their occupations, habits, interests and relations were such that they would not be apt to hear the character of the defendant’s place of business discussed. We think questions of that kind were proper, within reasonable limits, for the purpose stated, and we find no error in allowing those of which complaint is made.
3. -: construction of house: all used for one purpose. III. During the progress of the trial defendant asked that the state be compelled to elect whether to proceed on the theory that the house of ill-fame in question was located in the first story of the building occupied by defendant, or in the second story. But one act of sexual intercourse was proven, and that occurred in the small room adjoining the saloon, in the first story. The evidence tended to show that the rooms of defendant in both stories were frequented by men and women of
4. -: keeping for profit not necessary. IV.' It is objected by appellant that the state failed to show that he kept the place in question as a house of ill-fame, for,the purpose of gain; but the statute does not make that a necessary element of the crime, and. it was not necessary to prove it. 1 Bish. Crim. Law, sec. 1038.
5. -: evidence: proof of bad reputation not essential. V. The evidence in regard to the general reputation of the place in question was conflicting. A majority of the witnesses who testified in re§’arc^ ^ said) iQ effect, that it did not have the reputation of being a house of ill-fame, and appellant contends that the bad reputation of the place was not established by a great preponderance of the evidence. The court instructed the jury, in effect, that it was not necessary to prove that the general reputation of the place was bad, if the testimony showed that it was in fact a house of ill-fame.
In State v. Smith, supra, it was said : “ The term ‘ house of ill-fame ’ is, no doubt, a mere synonym for ‘bawdy-house,’ having no reference to the fame of the place, but denoting the fact.” ■ The gist of the offense is the keeping and use of the house for the purposes of prostitution and lewdness, and not its reputation. Henson v. State, supra; State v. Boardman, supra. We are aware that some authorities hold that proof of the reputation of the house is necessary. It was so held in Cadwell v. State, 17 Conn. 467, under a statute similar to that of this state. In State v. Brunell, 29 Wis. 436, the court condemned an instruction to the effect that, if the defendant was the keeper of the house in question during any part of the time covered by the indictment, and ‘ ‘ during that time the reputation of the
In Drake v. State, 14 Neb. 535; 17 N. W. Rep. 117, the court used language in harmony with the opinion in Cadwell v. State, supra; but whether it was necessary to prove that the reputation of the house was that of a house of prostitution was a question apparently not involved in the case, and not directly considered. The language referred to was used in reference to a point made by appellant that the evil character of the house should have been established by proof of facts, and not by its reputation alone. The court said it was necessary to prove that the house “was really a house of ill-fame, a house resorted to for acts of prostitution,” even though it was conceded that defendant wms the owner of the house, and knew of the use to which it was put, and that its reputation was that of a house of ill-fame. It was also said that evidence of the general reputation of the house was competent to establish its character.
In view of the general purpose of the statute, and the decisions of this court prior to the amendment of 1884, we conclude that it was not necessary, in order to convict the defendant, to prove that the general'reputation of the place in question was that of a house of ill-fame. In State v. Hand, 7 Iowa, 412, the court noted the fact that the counsel for defendant admitted that the character of the house might be shown by proving its reputation, and apparently approved the admission, but the point was not fully decided. In State v. Lyon, 39 Iowa, 379, the court referred to the case of State v. Hand, although it decided that the character of the house could not be shown by proving its general reputation. It is probable that section 4 of chapter 142 of the
6. -: instructions as to uses of homes, YI. The appellant complains that the charge to the jury was not sufficiently full, in that it did not require the jury to'find that the place in question was one oí resort for the purposes specified by the state. We think the charge, as a whole, properly, instructed the jury that, in order to find the defendant guilty, they must find that the place in question was resorted to for the purpose of prostitution or lewdness. It informed the jury, also, that a single act of illicit intercourse in the house, or any number of acts with the proprietor alone, would not make the place a house of ill-fame, but that it must have been used for that 'purpose more than once by others than the proprietor. The -, statute does not require that the place be used habitually or for any considerable length of time for the prohibited purposes, in order to constitute the offense in question.
7. Criminal law: verdict defect not fatal. YII. The verdict of the jury was in the following form: “We, the jury, in the case of State of Iowa ». Harry Lee, the defendant guilty as charged indictment.” The appellant insists that the verdict is fatally defective, for the reason that the word “find” is omitted therefrom.' The court charged the jury as to the form-of their verdict as follows: “If you find the defendant guilty, the form of your verdict will be, ‘We, the jury, find the defendant guilty as charged in the indictment. ’ If you find the defendant not guilty, you will say so; and, in either event, let your verdict be in writing, and signed by one of your number as foreman.” Section 4464 of the Code provides that the general verdict, on the plea of not guilty, is either “guilty” or “not guilty,” and that such a verdict imports a conviction or acquittal on
5. -: new trial: intoxication of juror: evidence. 6. -: -: newly discovered evidence, YIII. After the verdict was given, defendant filed a motion in arrest of judgment and for a new trial. One of the grounds of the motion was that a luror drank intoxicating liquor and was intoxicated during the trial. It was supported by the affidavit of defendant, and was contradicted by the affidavit of the juror. We cannot say that the court erred in overruling the motion on that ground. State v. Kennedy, 77 Iowa, 213. Anothér ground of the motion was that evidence material for the defense had been discovered since the trial. That ground is not recognized by the statute in criminal cases. Code, sec. 4489; State v. Bowman, 45 Iowa, 421.
IX. We have considered all the questions discussed by counsel, and find no error prejudicial to defendant. The judgment of the district court is, therefore, Affirmed.