
    (95 Misc. Rep. 508)
    PEOPLE v. WARD.
    (Niagara County Court.
    May, 1916.)
    1. Vagrancy <S=t3—Prosecutions—Evidence.
    Under Code Or. Proc. § 887, suud. i (c.j, declaring a, common prostitute, having no lawful employment whereby to maintain herself, a vagrant, a woman found in premises having the reputation of a disorderly resort cannot be convicted; there being no showing that she was a prostitute, or that she was at the time guilty of lewd conduct.
    [Ed. Note.—For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. <§=>3.]
    2. Vagrancy <@=>3—Prosecution—Evidence.
    To convict one of being a vagrant, within Code Or. Proc. § 887, subd. 4 (e), declaring a common prostitute, having no lawful means of support, a vagrant, the accused must be shown, not only to be a common prostitute, but to have no lawful means of support.
    [Ed. Note.—For other eases, see Vagrancy, Cent. Dig. § 3; Dec. Dig.
    3. Prostitution <®=1—“Common Prostitute”—Who is.
    A “common prostitute” is not necessarily a person having no legal means to maintain herself, the element of gain being unnecessary to constitute one a prostitute; the submission to indiscriminate sexual intercourse being enough.
    [Ed. Noto.—For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. tg=>l.
    For other definitions, see Words and Phrases, Second Series, Common Prostitute.]
    <©=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
    Appeal from Police Court of City of Niagara Falls.
    May Ward was convicted of vagrancy in violation of Code Cr. Proc. § 887, subd. 4 (e), and she appeals. Reversed and remanded.
    
      Angelo F. Scalzo, of Niagara Falls, for appellant.
    J. William O’Brien, Asst. Dist. Atty., of Niagara Falls, .for the People.
   FISH, J.

The information charges the defendant with being a common prostitute who has no lawful employment to maintain herself and then says “Vagrant, 887 Code, sub. 4.” Apparently the charge against the defendant was a violation of section 887, subdivision 4 (e), the applicable portion of which provides as follows:

“The following persons are vagrants (* * *). 4. A person * * * (e) who is a common prostitute who has no lawful employment whereby to maintain herself.”

Under this it was incumbent on the people to prove (1) that the defendant was a common prostitute; (2) that she had no legal employment whereby to maintain herself; and the question arises as to whether there was any evidence which would justify the judge in finding these two facts.

The only evidence on the part of the people was that of two police officers who testified that they went to 131 Eleventh street in the city of Niagara Falls about 9 p. m.; that there was a back door upstairs opening into the hallway of the second story of the place; that they looked through the keyhole of this door and saw a woman coming from a bedroom to a toilet next to this door carrying a basin of water; that there - were a number of men in the room known as the dance hall, which it appears was upstairs, but just where with reference to this bedroom does not appear-; that they then went to the front of the place, went into the barroom, asked the bartender to allow them to go upstairs, went upstairs, finding about twenty men up there, but no women; that they thereupon left, returning about 10:45 p. m., again went to the back door, looked through this keyhole, saw two men, two women, and a large number of men; that one of them went around to the front door and the other entered by the back door, and in the dance hall found the defendant there; “that she was not drinking or doing anything, but standing there,” and that she. was-dressed in a white shirt waist, black skirt, and had slippers on; that one of them arrested her, she put on her hat and shoes, and was taken to tire station. Each officer also testified that the place in question had the reputation of being a disorderly house.

These evidentiary facts are insufficient to prove either of the two ultimate facts which it was necessary for the people to establish before the defendant could be convicted. A defendant is presumed to be innocent, and before conviction his guilt must be established beyond a reasonable doubt. So far as the evidence shows this defendant may have been in this place on an innocent mission. There is not the slightest suggestion that she made an indecent proposal or that she acted in a lewd or indecent manner. It is true she was found in a house which-the police judge might have found was a disorderly house, assuming that evidence as to the reputation of the house was competent; but a disorderly house is not necessarily a house of prostitutian, and, even if it were, there is no evidence that she knew of the character of the house. People v. Meyer, 157 N. Y. Supp. 997.

Furthermore, even if the defendant was a common prostitute, before she could be convicted it was necessary to go further and show that she had no lawful employment whereby to maintain herself; and there is not the slightest evidence to show that she had no such employment. A common prostitute is not necessarily a person who has no lawful means whereby to maintain herself. People v. Forbes, 4 Parker Cr. R. 611. In People v. Florence Bell, not reported, I had occasion to examine the subject, and came to the conclusion that a common prostitute was a female who commonly engaged in the practice of indiscriminate sexual intercourse with men, and that it was doubtful whether the element of gain was essential to constitute one a prostitute. Such a person might have a lawful employment during the day and still be engaged in prostitution at night.

Inasmuch as the district attorney claims that this was a bad place, and the defendant undoubtedly guilty, I shall order a new trial, to the end that the people may establish the defendant’s guilt by competent evidence, if they can.

Judgment reversed, and new trial ordered in County Court.  