23. "Resorted" means "visited frequently."-O'Brien v. People, 28 Mich. 213, 2 Cr. L. Rep. 571. 24. Variety theater - Employing disreputable women.-Johnson v. State (Tex. Cr. App. March 25, 1893), 21 S. W. 929; Johnson v. State, 32 Tex. Cr. Rep. 504, 24 S. W. 411. 25. Penalty for violation-Should be prescribed. The penalty should be prescribed with reference to offenses which are committed, rather than to power under which they may be prescribed.-In re Ah You, 88 Cal. 99, 101, 22 Am. St. Rep. 280, 11 L. R. A. 408, 25 Pac. 974. II. KEEPING HOUSE OF ILL-FAME, ETC. -WHO IS A "KEEPER." . 26. As to keeping-"To keep" may apply only to one who exercises control or proprietorship of building or place used. Is never employed to signify any subordinate or temporary business, or employment, or engagement. To keep a house implies much more than to live in one. Controlling head of hotel keeps it, and so controlling head of house of ill-fame keeps such house. -Conn. State v. Main, 31 Conn. 572, 574. Iowa. State v. Pearsall, 43 Iowa 630, 2 Am. Cr. Rep. 380. Mass. Commonwealth v. Kimball, 105 Mass. 465. Fed. United States v. Smith, 4 Cr. C. C. 629, 640, 27 Fed. Cas. 1149 (gaming case). As to bad character not making one a "keeper," see par. 38, this note. 27. Provisions of Penal Code are designed for punishment of keepers of such establishments, and not for punishment of every person who may occupy a room therein without being proprietress.-Moore v. State, 4 Tex. Cr. App. 127. 28. As to initiation of proceedings-By whom. There is no provision of law imposing upon a constable the duty of instituting proceedings for a violation of this and section 316. Such proceedings are instituted by the filing of a verified complaint with a magistrate, and a constable has no greater duty in this regard than a private citizen. His failure to act upon common repute in making an arrest is not a neglect of official duty-Ferguson V. Superior Court, 26 Cal. App. 554, 147 Pac. 603. 29. Evidence-Competency of to prove one a "keeper."-While fact that character of house is disorderly house, and that it is kept for purpose of prostitution, may be proved by general reputation, yet such proof is inadmissible to prove that person charged is keeper of such house. Evidence to prove this must be founded upon personal knowledge.-Coats v. People, 22 N. Y. 245; Burten v. State, 16 Tex. App. 156; Disorderly House, 10 Cr. L. Mag. 520. 30. Compare: Barker v. Commonwealth, 90 Va. 820, 20 S. E. 776. 31. To prove this charge, it must be established: 1. That house was common resort of people of both sexes for purpose to. The principle of these cases is, that landlord was simply owner of tenements. letting them to other persons, who used them for immoral purposes. Russell doubts these cases.-Russell on Crimes (8th ed.), 449; Regina V. Barrett, 32 L. J. M. C. 36, L. & C. 263, 9 Cox C. C. 255, Regina v. Stannard, L. & C. 349. 33. Same-Letting rooms to prostitutes. -Dutton v. State, 2 Ind. App. 448, 28 N. E. 995; State v. Smith, 15 R. I. 24, 22 Atl. 1119. 34. Same Same - Single-room cases. -Ala. Toney v. State, 60 Ala. 97. Idaho. People v. Ah Hoy, 1 Idaho N. S. 691. Iowa. State v. Mullen, 35 Iowa 199. Mass. Commonwealth v. Hill, 14 Mass. 24; Commonwealth v. Howe, 79 Mass. (13 Gray) 26; Commonwealth v. Bulman, 118 Mass. 456, 19 Am. Rep. 469. N. H. State v. Garity, 46 N. H. 61. N. C. State v. Evans, 5 Ired. 603. Tex. Moore v. State, 4 Tex. App. 127 (occupation of room does not make prostitute a "keeper').-Rex v. Pierson, 2 Ld. Raym. 1197 be (a single-room lodger may indicted as keeper); 4 Lawson Cr. Def. 788. 35. Same Several tenements.-As keeping several tenements.-Commonwealth v. McGaughey, 75 Mass. (9 Gray) 296. to 36. Proof that one tenement was used does not sustain allegation that "certain building" was used.-State v. Plant. 67 Vt. 454, 48 Am. St. Rep. 821, 32 Atl. 237. 37. Under usual single count, proof of user of more than one tenement is not admissible. Proof of keeping must be confined to time alleged in indictment.-Fleming v. State, 28 Tex. App. 234, 12 S. W. 605. 38. Same-Bad character does not make "keeper.”—That one has bad character does not make him "keeper."-Ala. Sparks V. State, 59 Ala. 82. Iowa. State v. Hand, 7 Iowa 411, 71 Am. Dec. 453; State v. Lee, 80 Iowa 75, 25 Am. St. Rep. 401, 45 N. W. 545. Me. State v. Boardman, 64 Me. 523. Md. Beard v. State, 71 Md. 275, 17 Am. St. Rep. 536, 4 L. R. A. 675, 17 Atl. Rep. 1044. Mass. Commonwealth v. Kimball, 73 Mass. (7 Gray) 328; Commonwealth v. Gannett, 83 Mass. (1 Allen) 7, 79 Am. Dec. 693. Mich. People v. Saunders, 29 Mich. 268. N. Y. Kenyon v. People, 26 N. Y. 203, 84 Am. Dec. 177. Tex. Gamel v. State, 21 Tex. App. 357, 17 S. W. 158; Stone v. State, 22 Tex. App. 185, 2 S. W. 585; Sara v. State, 22 Tex. App. 639, 3 S. W. 339; Loraine v. State, 22 Tex. App. 640, 3 S. W. 340. Vt. State v. Plant, 67 39. a Same-Creditor of proprietor not "keeper."That one is creditor of actual proprietor does not make him "keeper."Stone v. State, 22 Tex. App. 185, 2 S. W. 585. 40. Same-Frequenter not "keeper." That one frequents the premises does not make him "keeper."-State v. Pearsall, 43 Iowa 630. 41. Same-Woman living alone, and receiving men, is not, merely because unchaste, a "keeper."-Cadwell v. State, 17 Conn. 467; Commonwealth v. Lambert, 94 Mass. (12 Allen) 177. 43. Distinction-Between letting and permitting-None.-Law makes no distinction between act of letting house for purpose of prostitution, and letting of it for proper purpose and afterwards knowingly permitting it to be used for purpose of prostitution.-State v. Abrahams, 6 Iowa 117. 44. How shown-Knowledge-Letting as house of ill-fame, etc.-Liability.-To render lessor liable, it must appear that he has some interest in it as such, or that he participated in its management. Where evidence shows that lessor originally leased premises, without knowledge or intention that they would be illegally used, proof that he took no steps to avoid lease will not justify conviction.-Iowa, State V. Abrahams, 6 Iowa 117, 71 Am. Dec. 399; State v. Ballingall, 42 Iowa 87, 2 Am. Cr. Rep. 376; State v. Pearsall, 43 Iowa 630, 2 Am. Cr. Rep. 380. Me. State v. Stafford. 67 Me. 125. Ohio. Crofton v. State, 25 Ohio St. Rep. 249, 2 Am. Cr. Rep. 378. See par. 47, this note. 45. Same -Criminal agreements are often, if not usually, made tacitly. They can only be proved by circumstances. If person leases house to woman of ill-repute, and knows of that repute, and house is thenceforth used for unlawful purposes, and such use is known to him, these facts must be regarded as having tendency to create belief in his guilty knowledge, or, at all events, as bearing upon that fact. All the facts can not be brought in at once. Each is proved separately, and the order of proof must be left somewhat discretionary. If facts enough are not shown, respondent can not be convicted; but no relevant fact can be excluded, merely because it does not by itself prove the case.-Campbell, J., in People v. Saunders, 29 Mich. 269, 272. 46. "That letting of house, with knowledge that it is intended to be kept in disorderly manner, will render landlord indictable as principal in keeping disorderly house, was expressly and correctly decided in People v. Erwin, 4 Denio 129. Such guilty knowledge, I think, may, in general, be fairly inferred from proof that landlord, after he knew that his tenant was in habit of so acting, renewed lease and made no real effort to restrain him. Continual receipt of rent, and persistence in enlarging term of disorderly tenant, who earns means of paying rent by misconduct visible to landlord, may amount to very satisfactory evidence that he did in fact procure and sanction disorderly conduct."-State v. Williams, 30 N. J. L. (1 Vr.) 112. 47. Same-Knowledge of illegal use, and inaction to prevent it, are evidence of lessor's consent. This case seems to hold "mere" control insufficient.-State v. Frazier, 79 Me. 95, 8 Atl. 347. 48. Does mere letting with knowledge of lessee's purpose suffice?-State v. Wheatley, 72 Tenn. 230 (seems to hold that it does not). 49. It must be shown that owner or lessor knew purposes for which house would be used, or that he let house with intent that it should be used for disorderly purposes.-Iowa. State V. Abrahams, 6 Iowa 117. Ky. Frederick v. Commonwealth, 4 B. Mon. 7; Commonwealth v. Crupper, 3 Dana 466. Me. State v. Leach, 50 Me. 535. Neb. Drake v. State, 14 Neb. 535, 17 N. W. 117. Ohio. Crofton v. State, 25 Ohio St. Rep. 249. Tenn. State v. Wheatley, 4 Lea 230; Brooks v. State, 2 Yerg. 482. 50. Same-Same-Evidence of. — - Lessor's knowledge may be proved by circumstantial evidence; he need not be shown to have actual knowledge of character of house; that is, in sense of personal knowledge of acts of prostitution.-Graeter v. State, 105 Ind. 271, 4 N. E. 461. 51. Prosecution in "letting" cases must show: 1. That house was one resorted to for purpose of prostitution; 2. That defendant was owner or had control of house; 3. That he knowingly let house for purpose of prostitution. The bawdy character of house may be shown by general reputation; proof of particular acts of prostitution is not necessary.-Drake v. State, 14 Neb. 535, 17 N. W. 117. It consider such a point without proof. can not be left to conjecture. "In charging jury, court allowed them to consider amount of rent as having bearing on likelihood of such rate being paid for improper purposes. This was clearly error, as there was no proof introduced to create standard of comparison, and it would be extremely dangerous to leave juries at liberty to derive conclusions based upon nothing but conjecture."-People v. Saunders, 29 Mich. 269. 55. Discharge on habeas corpus will be granted to petitioner imprisoned for violation of ordinance void because unreasonable. In re Ah You, 88 Cal. 99, 103, 22 Am. St. Rep. 280, 11 L. R. A. 408, 25 Pac. 974. 56. Injunction-Not granted to restrain rolice from interfering with business of keeping houses of prostitution, nor will courts of equity prevent suppression of places maintained in violation of law.-Pon v. Wittman, 147 Cal. 280, 294, 81 Pac. 984, 991. 57. Indictment-As to, generally, see Ga. Jordan v. State, 60 Ga. 656. Ky. Commonwealth v. Crupper, 3 Dana 466. N. Y. People v. Hatter, 22 N. Y. Supp. 688. State v. Wheatley, 72 Tenn. (4 Lea) Tenn. 230. 58. Same-Names or character of frequenters of premises need not be alleged, where it is distinctly charged that the premises were used for the purposes of lewdness, assignation, and prostitution, in order to constitute an offense under the above section.-Selowsky, 180 Cal. 404, 408, 180 Pac. 652, 654. 59. Evidence-Conversation held outside alleged house of ill-fame, and immediately after coming out of it, but not in presence of defendant, is not admissible.-Commonwealth v. Harwood, 70 Mass. (4 Gray) 441, 64 Am. Dec. 49; Commonwealth v. Davenport, 84 Mass. (2 Allen) 299; Commonwealth v. Sliney, 126 Mass. 49. See State v. Barging, 75 Me. 591. 60. Same-Defendant's reputation for chastity. On trial for keeping disorderly house, evidence of defendant's general reputation for want of chastity is incompetent. -State v. Hull, 18 R. I. 207, 26 Atl. 191; Gamel v. State, 21 Tex. App. 357, 17 S. W. 158. 61. Same-General reputation as to "keeper."-Fact that defendant is keeper can not be shown by general reputation.Ky. State v. Hopkins, 2 Dana 418. N. H. State v. Foley, 45 N. H. 456. Tex. Allen v. State, 15 Tex. App. 320; Burton v. State, 16 Tex. App. 156; Sara v. State, 22 Tex. App. 639, 3 S. W. 339. There must be direct and positive evidence that defendant is actually keeper. No one can be convicted of crime on mere rumor.— Iowa. State v. Rand, 7 Iowa 411, 71 Am. Dec. 453. Md. Henson v. State, 62 Md. 231, 50 Am. Rep. 204. Tex. Allen v. State, 15 Tex. App. 320; Sara v. State, 22 Tex. App. 637, 3 S. W. 339; Loraine v. State, 22 Tex. App. 640, 3 S. W. 340. Vt. State v. Plant, 67 Vt. 454, 48 Am. St. Rep. 821, 32 Atl. 237, 5 Cr. L. Mag. 693. 63. Same-General reputation of house.— Whether evidence of general reputation of house or inmates is sufficient, standing alone, to sustain conviction, quære.—People v. Saunders, 29 Mich. 269; Sylvester v. State, 42 Tex. 496, 1 Am. Cr. Rep. 250. 64. The character of house is matter of fact and not of opinion, and evidence with regard to it is competent.-People v. Lock Wing, 61 Cal. 380; Smith v. Commonwealth, 45 Ky. (6 B. Mon.) 21; Commonwealth v. Stewart, 1 Serg. & R. (Pa.) 342. 65. Same-In prosecution for letting, it is error to allow jury to infer fact of which there is no evidence, and testimony which shows that lessee of house, and women who had been seen in house, were reputed prostitutes is not, of itself, sufficient to establish fact that house is kept or used as house of prostitution.-Saunders v. People, 29 Mich. 269, 1 Am. Cr. Rep. 346. See pars. 44-53, this note. 66. As to evidence sufficient to convict of "letting," see People v. Gustin, 57 Mich. 407, 6 Am. Cr. Rep. 290, 24 N. W. 156. 67. Same-Must show lewdness practiced in the house, to sustain the accusation. In re Selowsky, 38 Cal. App. 569, 580, 177 Pac. 301, 305. 68. Same-Resolution of board of supervisors declaring place a nuisance amounts to nothing.-State v. Webber, 107 N. C. 962, 22 Am. St. Rep. 920, 12 S. E. 598. 69. Same Rebuttal - What may be shown in.-Woman charged with keeping bawdy-house may show as defense, in rebuttal of proof that she was prostitute. that her physical condition rendered prostitution improbable, if not impossible.Toney v. State, 60 Ala. 97. See, also, Ex parte Grobois, 10 Cal. Dec. 176. Iowa. State v. Lee, 80 Iowa 75, 20 Am. St. Rep. 401, 45 N. W. 545. Md. Beard v. State, 71 Md. 275, 17 Am. St. Rep. 536, 47 Atl. 1044. N. C State v. Calley, 104 N. C. 858, 17 Am. St. Rep. 704, 10 S. E. 455; State V. Webber. 107 N. C. 962, 22 Am. St. Rep. 920, 12 S. E. 487. Tex. Harmes v. State, 26 Tex. App. 190, 8 Am. St. Rep. 470, 9 S. W. 487. D. C. De Forest v. United States, 26 Wash. 346. § 316. KEEPING DISORDERLY HOUSES, ETC. Every person who [1] keeps any [a] disorderly house, or [b] any house for the purpose of assignation or prostitution, or [c] any house of public resort, by which the peace, comfort, or decency of the immediate neighborhood is habitually disturbed, or who [2] keeps any inn in a disorderly manner; and every person who [3] lets any apartment or tenement, knowing that it is to be used for the purpose of assignation or prostitution, is guilty of a misdemeanor. History: Enacted February 14, 1872; amended March 30, 1874, Code 2. Contract of copartnership-Illegal letting of premises for purposes of prostitution. 3. Practice-Reputation of house of ill-fame may be shown. 1. Collecting rents from tenements let and used for purposes of prostitution is contrary to provisions of this section, and against public morals, and courts will not lend their aid to person who is guilty of such offense, to enable him to collect for such services in an action for an accounting. Ballerino v. Ballerino, 147 Cal. 544, 545, 82 Pac. 199 more entertain action founded upon such contract for relief of either of parties to it, than it would entertain action between two thieves for equitable division of their plunder.-Chateau v. Singla, 114 Cal. 91, 94, 55 Am. St. Rep. 63, 33 L. R. A. 750, 45 Pac. 1015. See In re Estate of Groome, 94 Cal. 69, 29 Pac. 487; Buck v. Eureka, 109 Cal. 504, 30 L. R. A. 409, 42 Pac. 243; Demartini V. Anderson, 127 Cal. 33, 35, 59 Pac. 207. 3. Practice-Reputation of house itself as one of ill-fame may be shown.-Demartini v. Anderson, 127 Cal. 33, 35, 59 Pac. 207. See Conn. Cadwell v. State, 17 Conn. 467. Ind. Betts v. State, 93 Ind. 375; Graeter v. State, 105 Ind. 271, 4 N. E. 461. Mass. Commonwealth V. Kimball, 73 Mass. (7 Gray) 328. Mich. O'Brien v. People, 28 Mich. 213. Minn. State v. Smith, 29 Minn. 193, 12 N. W. 524. Neb. Drake v. State, 14 Neb. 535, 17 N. W. 117. Tex. Morris V. State, 38 Tex. 603; Sylvester v. State, 42 Tex. 496; Allen v. State, 15 Tex. App. 321. Wis. State v. Brunnell, 29 Wis. 435. 2. Contract of copartnership having for its purpose letting of apartments for purposes of prostitution is unlawful, against good morals, public policy, and express mandate of statute, and equity will no § 317. UNLAWFUL ADVERTISEMENTS [TO PRODUCE MISCARRIAGE]. Every person who wilfully writes, composes, or publishes any notice or advertisement of any medicine or means for producing or facilitating a miscarriage or abortion, or for the prevention of conception, or who offers his services by any notice, advertisement, or otherwise, to assist in the accomplishment of any such purpose, is guilty of a felony. History: Enacted March 30, 1874, Code Amdts. 1873-4, p. 430. § 318. PREVAILING UPON ANY PERSON TO VISIT A PLACE KEPT FOR GAMBLING OR PROSTITUTION, A MISDEMEANOR. Whoever, through invitation or device, prevails upon any person to visit any room, building, or other places kept for the purpose of gambling or prostitution, is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the county jail not exceeding six months, or fined not exceeding five hundred dollars, or be punished by both such fine and imprisonment. History: Enacted April 16, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 40. $319. LOTTERY DEFINED. § 324. Insuring lottery tickets. Publishing offers to insure. § 325. Property offered for disposal in lottery forfeited. § 326. Letting building for lottery purposes. A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or any interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift enterprise, or by whatever name the same may be known. History: Enacted February 14, 1872, founded on § 1 Act April 24, 1861, Stats. 1861, p. 229. 10. Municipality Power to legislate 13, 14. Same-Prohibitory tax on void. 15. Public policy-Against gambling and lotteries. II. SAME-WHAT SCHEMES ARE LOTTERIES. 16. Art works distributed by lot. 17. Austrian government bonds. 18. Banking game-As to whether lottery. 19. Same-Of razzle-dazzle. 20. Bazaar-bonus scheme. 21. Bond sale-Holding out prizes drawn by chance. 22. Concert and lecture scheme is, when. 24. Designating with pointer scheme. 27. Foreign government bonds-Not a lot- 42. Playing policy-Whether gambling or lottery. 43. Pools on horse-races, etc. 44, 45. "Prize packages"-Candy, tea, etc. 46. Sale of envelopes-Some of which contain tickets. 47. Trading-stamp device. 48, 49. Wheel of fortune is. I. LOTTERIES-IN GENERAL. 1. A promissory note-Given for money advanced by payee to be used in lottery scheme under an agreement that the money shall be so used, and its subsequent use as agreed, is void and unenforceable.-Slaoss v. Holland, 38 Cal. App. 318, 176 Pac. 72. 2. Construction - — Legislative policy. Legislature, under article IV, section 26, of constitution, is prohibited from authorizing lotteries for any purpose, and is directed by that clause, which is mandatory, to pass laws prohibiting sale of tickets for anything in nature of lottery; and all laws in Penal Code in reference thereto, ordinances making mere possession of such tickets misdemeanor, and all such laws, should receive liberal construction, with a view to carry out constitutional policy.-Collins v. Lean, 68 Cal. 284, 289, 9 Pac. 173. 3. Definition-Lottery is distribution of prizes by lot or by chance. There are two kinds of lottery in general use-one, the Genoese or numerical system, sometimes called the combination plan; the other, the Dutch or class lottery, sometimes called the single-number plan. In each, chances are purchased, generally by the purchase of tickets or a fraction of a ticket. But it is not necessary that tickets be issued. Wherever chances are sold and distribution of prizes determined by lot, this constitutes a lottery.-Buckalew v. State, 62 Ala. 334, 34 Am. Rep. 22; Wilkinson v. Gill, 74 N. Y. 63, 30 Am. Rep. 264. 4. "Where a pecuniary consideration is paid, and it is determined by lot or chance, according to some scheme laid out to the public, what and how much he who pays the money is to have for it, is a lottery."Hull v. Ruggles, 56 N. Y. 424; Wilkinson v. Gill, 74 N. Y. 63, 30 Am. Rep. 264. 5. A lottery is a scheme by which persons, upon payment of money or something of value, obtain contingent right to have something of greater value, depending on appeal to chance, by lot or otherwise, under direction of manager of scheme or en |