
    Commonwealth vs. Lily Whittaker.
    Suffolk.
    Nov. 22, 1880. —
    April 25, 1881.
    Lord, Field & Deveks, JJ., absent.
    At the trial of an indictment on the Gen. Sts. c. 165, § 2, for enticing a woman of chaste life and conversation to a house of ill fame for purposes of prostitution, the burden is on the government to prove the chastity of the woman; and a ruling that, “ in the absence of evidence to the contrary, it is a presumption of law that she was of chaste life and conversation,” is erroneous.
   Endicott, J.

This is an indictment under the Gen. Sts. o. 165, § 2; and it is charged therein that the two women enticed by the defendant to a house of ill fame for purposes of prostitution were of chaste life and conversation. The presiding judge instructed the jury that it was incumbent upon the government to prove upon all the evidence that the women were of chaste life and conversation; but he added that, “ in the absence of evidence to the contrary, it is a presumption of law that they were of chaste life and conversation.” This instruction permitted the jury to find, that the burden upon the government was satisfied by the legal presumption that the women were chaste, although the government had introduced no affirmative evidence of their chastity.

The gist of the offence is in fraudulently enticing to a house of ill fame for purposes of prostitution any unmarried woman of chaste life and conversation. If these women were of unchaste life and conversation, no offence was committed within the meaning of the statute. Their chastity must therefore be established, as laid in the indictment, by affirmative proof. The defendant is presumed to be innocent until every material allegation necessary to constitute the offence charged is .proved beyond a reasonable doubt. To allow the proof of such an allegation to rest merely on the legal presumption that the women were chaste, would be to permit the presumption in favor of the defendant’s innocence of the offence charged to be overborne by another legal presumption in favor of the innocence of other persons not parties to this proceeding. We are therefore of opinion that the ruling was erroneous, and that, under this statute, the chastity of the women must be proved by the government in the same manner as any other material allega tion in the indictment. West v. State, 1 Wis. 209. People v. Roderigas, 49 Cal. 9. Kenyon v. People, 26 N. Y. 203. Safford v. People, 1 Parker (N. Y.) 474. Carpenter v. People, 8 Barb. 603. 1 Greenl. Ev. § 35. Whart. Crim. Law (8th ed.) § 1757. Bish. Stat. Cr. § 639. Exceptions sustained.

H. E. Swasey $ Cr. R. Swasey, for the defendant.

E. jS’. Crillett, Assistant Attorney General, (G. Marston, Attorney General, with him,) for the Commonwealth.  