HALL v. UNITED STATES, 2 Alaska Fed. 796

HUNT, District Judge, after making the foregoing statement of the case, delivered the opinion of the court. Plaintiff in error first presents the same question of jurisdiction that we have considered and decided in the case of Rosencranz v. United States, 155 F. 38; Hornstein v. United States, 155 F. 48, and Botts v. United States, 155 F. 50. Upon the authority of those decisions we hold that the District Court for the District of Alaska had jurisdiction of the case, and that it properly overruled the plea and demurrer. In this case, as'in that of Botts and Haughey v.

United States (just decided by this court) 155 F. 50, error is assigned upon the charge of the court that, “in all prosecutions for the offense of keeping a bawdyhouse, common fame or reputation is competent evidence in support óf the indictment as to the character of the house. Therefore, if the house has the reputation of being a bawdyhouse or house of ill fame beyond a reasonable doubt, that is sufficient to support a finding that it was such, and if there is no evidence offered to the contrary. * * * ” This was an erroneous statement of the law, as we have shown in the case of United States v.

Botts and Haughey, supra, in that it authorized a conclusion upon one of the essential elements of the charge against the defendant upon a quantum of proof less than the law demands. It is not possible to regard the error as cured or without prejudice. The jury were not only directed that they could predicate a finding upon the measure of proof prescribed by the instruction, but the evidence in the record shows that proof of the reputation alone of the house alleged to have been kept by defendant was relied upon as sufficient, and that no evidence of use or purpose other than reputation was considered necessary.

Moreover, the plaintiff in error requested a charge that reputation or fame, while competent, was by itself “not sufficient evidence to warrant a conviction for keeping a bawdyhouse; there must be some other evidence showing that the house is actually used as a bawdyhouse”; but the court, consistent with its rulings throughout the trial, refused so to charge. Inasmuch as our opinion in United States v. Botts and Haughey, supra, covers the point under consideration, we do not deem it necessary to repeat the views we there laid down.

We advise that upon a new trial the court reform its definition of a reasonable doubt so as to avoid the double definition which was given substantially in language which was criticised by this court in Owen v. United States, 130 F. 279, 64 C.C.A. 525. The judgment is reversed, and the cause remanded for a new trial.