State v. Treweilder

Beed, J., delivered the opinion of the court. The indictment charges the appellee with willfully, unlawfully, and knowingly letting a certain house in the city of Clarksdale to Maggie Fisher, appellee having at the time the control and power of letting the house, with the intent that the lessee, during the continuance of the lease, keep and maintain a common bawdyhouse; and [863] that after the letting, with the connivance and procurement of the appellee, she did keep and maintain the house as a common bawdyhouse. The demurrer to the indictment raised the question of whether the letting of a house, knowing that it is to be used for the purpose of prostitution, is an indictable offense in this state. This appeal is taken from the action of the trial court in sustaining the demurrer. We find that this court, in the case of Garvin v. State, 96 Miss. 377, 50 South. 498, has decided that the keeping of a bawdyhouse was an offense in this state under the common law, and that section 5055 of the Code of 1906, which provides that every keeper of a house of prostitution shall be punished as a vagrant, does not exclude the right to prosecute a person for keeping a bawdyhouse as an offense under the common law. Mayes, J., delivering the opinion of the court said: “The common law still prevails in this state where not abrogated by statute, and offenses which were such under the common law are still indictable and punishable, and keeping a bawdyhouse was an offense at common law, and not abrogated by our statute. ’ ’ Mr. Wharton, in his Criminal Law (10 Ed.), section 1459, states: “At common law it is an indictable offense not only to keep a house of ill fame, or to be in any way concerned in the same, but to let a house, knowing it is to be used for the purpose of prostitution.” Mr. Bishop, in his New Criminal Law (8 Ed.), section 1090, says: “A mere attempt to commit an offense is ordinarily, we have seen, indictable; and a solicitation is an attempt of a particular kind. On this principle, the letting of a -house for a brothel is, even before it is used, a punishable misdemeanor. Then, if the house is afterward kept for bawdry, he whose will contributed to it by letting it therefor is, within the principle just explained, indictable as keeper.” There are no accessories in misdemeanors. All those who aid or abet the commission of misdemeanors are [864] principal offenders. In the case of People v. Erwin, 4 Denio (N. Y.), 129, it is decided that where one rents a house with the intent that it shall be kept, and which is accordingly kept, for the purposes of public prostitution, and who derives a profit from that mode of using the property, is punishable by indictment for a misdemeanor. The indictment sufficiently charges an offense in this state, and the demurrer thereto. should have been overruled. Reversed. Suggestion of error filed add overruled.