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Mose Rosencranz, plaintiff in error, was indicted under the code of Alaska for the crime of keeping a bawdyhouse. The indictment, in its direct charging part, is as follows: "The said Rosencranz within two years last past, to wit, on the 30th day of September, nineteen hundred and six, in the district aforesaid, did wrongfully and unlawfully keep and set up a house of ill fame, brothel, and bawdyhouse, for the purpose of prostitution, fornication, and lewdness, the same being that certain apartment, being the fourth apartment east of the westerly line thereof on the southerly end of lot 46, block 19, according to the town-site plat thereof, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.” Rosencranz interposed a plea in abatement, alleging that the municipal court in and for the city of Nome, Alaska, had exclusive jurisdiction of the offense charged in the indictment, and that the District Court of the United States for the District of Alaska, Second Division, had no jurisdiction. He also filed a demurrer to the indictment, based upon the ground that the grand jury had no legal authority to inquire into the crime charged, and that the indictment did not conform to the requirements of chapter 7 of title 2 of the act of Congress entitled "An act to define and punish crimes in the District of Alaska and to provide a Code of Criminal Procedure for said district" (Act March 3, 1899, 30 Stat. 1253, c. 429); and that the facts stated in the indictment do not constitute a crime. The court overruled the plea and the demurrer. Trial was had.
Trial was had. At the close of all of the evidence, plaintiff in error moved the court to direct a verdict of not guilty. This motion was based upon the principal ground that the indictment did not allege a crime under the laws of Alaska, and that the evidence failed to show that plaintiff in error had acted as agent, owner, proprietor, or lessor, or that he had knowledge of the use to which the property had been put. This motion was overruled. Plaintiff in error was convicted, and sentenced to imprisonment for one year. He prosecutes this writ of error to review the proceedings and rulings of the lower court, and to set aside the judgment of conviction.
James W. Bell, C. D. Murane, Hobbes & Bell, W. H. Bard, James E. Fenton, and Albert Elliot, for plaintiff in error.
Henry M. Hoyt, U. S. Atty., for defendant in error.
Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.
HUNT, District Judge. The first contention of the plaintiff in error is that the District Court of Alaska had no jurisdiction because by the act of Congress approved April 28, 1904 (33 Stat. 529,534 c. 1778), which was “An act to amend and codify the laws relating to municipal corporations in the District of Alaska,” Congress conferred upon municipal corporations in Alaska the power to prohibit gambling, houses of ill fame, and other misdemeanors, and to prescribe the punishment therefor, and that thereby it repealed section 127 of the act of Congress approved March 3, 1899 (Carter's Code), providing for the prosecution and punishment of such offenses in the District Courts of the territory. The particular clause of the act of April 28, 1904, which is relied upon by plaintiff in error, reads as follows:
“Sec. 8: That all acts and parts of acts inconsistent with this act are, to the extent of such inconsistency hereby repealed: and the provisions of this act shall apply to and govern all municipal corporations heretofore created in the District of Alaska." 33 Stat. 534.
It is established by the plea filed by plaintiff in -error that the city council of Nome did on August 1, 1901, pass an ordinance making it a misdemeanor to set up or keep a house of ill fame or bawdyhouse for the purpose of prostitution. The argument is that Congress intended to vest in the municipal authorities exclusive jurisdiction of the misdemeanors mentioned, and that the purpose was to prevent a conflict between the federal and local authorities within the limits of incorporated towns. To support this reasoning plaintiff in error cites decisions by the Supreme Courts of California and Missouri. But upon examination of the principal case relied upon, Green v. Superior Court, 78 Cal. 556, 21 Pac. 307, 541, we find that it is really inapplicable. That was an application for a writ of prohibition by Green, who was indicted in the superior court of the city and county of San Francisco for conspiracy. The writ was sought upon the ground that inasmuch as conspiracy was punished by imprisonment not exceeding one year, or by fine not exceeding $1,000, or by both, jurisdiction was exclusively in the police court of the city and county of San Francisco. The Constitution of the State of California provided that the superior courts should have jurisdiction in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for. By further constitutional power the Legislature was authorized to fix the jurisdiction of inferior courts created by it in pursuance of the Constitution; and an act was passed which prescribed the jurisdiction of the police court of the city and county of San Francisco, wherein it was provided that the police court should have jurisdiction of misdemeanors of a certain class, which included conspiracy. The court held that the jurisdiction had become exclusive in the police court because the Constitution had plainly conferred jurisdiction in the superior courts only until otherwise provided for, and that, inasmuch as other provision has been made, the authority of the superior court ended, as it was meant it should end under the provisions of the Constitution. It will be understood, therefore, that the decision turned upon the terms of the Constitution of the state, which indicated an intention that there should be jurisdiction in the one court. In the course of the opinion, however, the court expressly recognized the rule as a well-established one that where jurisdiction is given either by Constitution or statute to two different courts, not indicating whether such jurisdiction shall be exclusive or concurrent, the same may be regarded as concurrent in both courts, although the case then before the court was not brought within the operation of the rule, for reasons already indicated. So far, therefore, as the opinion is pertinent at all to questions of jurisdiction involved in the present case, it is but one of the many decisions which recognize the principle that, when a court has jurisdiction of a crime, a statute which merely confers the same jurisdiction on another court does not deprive the former court of its jurisdiction, unless there is an express provision or clear implication to that effect. The consequence is that concurrent jurisdiction is conferred. 12 Cyc. p. 199; State v. Nichols, 60 Atl. 763, 27 R. I. 69; Moren v. Commonwealth, 76 S. W. 1090, 116 Ky. 859. This principle is thus stated by Cooley in his Constitutional Limitations, p. 279:
“Nor will conferring a power upon a corporation to pass by-laws and impose penalties for the regulation of any specified subject necessarily supersede the state law on the same subject; but the state law and the by-law may both stand together if not inconsistent. Indeed, an act may be a penal offense under the laws of the state, and further penalties under proper legislative authority be imposed for its commission by municipal laws. And the enforcement of the one would not preclude the enforcement of the other."
Among the well-considered decisions in accord with Cooley's text are: Ogden v. City of Madison, 111 Wis. 413, 87 N. W. 568, 55 L. R. A. 506, where it was held that where the keeping of a house of ill fame was made a misdemeanor by state law, so that one accused of doing so was entitled to a jury trial, it did not prevent a municipality from imposing a penalty for a like offense which could be enforced without a jury trial; McInerney v. City of Denver et al., 29 Pac. 516, 17 Colo. 302, where petitioner was convicted of keeping open a tippling house in violation of a city ordinance, and it was held that, although by general statute of the state the act was made a misdemeanor, yet the Legislature could delegate power to municipal corporations to adopt and enforce ordinances on matters of special local importance, even though general statutes exist relating to the same subject, and both could be given effect; Territory v. Guyott, 9 Mont. 46, 22 Pac.
. 134, where an act of the territory of Montana which made it a felony to sell liquor to an Indian was held to be constitutional, though Congress had passed a statute making the act a crime; and Town of Van Buren v. Wells, 14 S. W. 38, 53 Ark. 368, 22 Am. St. Rep. 214, where a conviction under a state law for carrying concealed weapons was held not to be a bar to a prosecution for the same act under a city ordinance. It was also decided in U. S. v. Wells, 2 Cranch, C. C. 45, Fed. Cas. No. 16,662, that a by-law of Georgetown prescribing a penalty for keeping a public gaming table did not supersede nor repeal a general law of Maryland prescribing a penalty for keeping a faro table in a house occupied by a tavern keeper; and in U. S. v. Holly, 3 Cranch, C. C. 656, Fed. Cas. No. 15,381, Judge Cranch ruled that it was not to be supposed that a power to pass by-laws to prohibit gambling, conferred upon the city of Washington, was to be regarded as an exclusive power bestowed. As we look at the question, Congress, in conferring power upon the municipalities of Alaska to prohibit houses of ill fame, gambling, disorderly conduct, and other offenses, and in conferring the further power upon the municipalities to define such offenses and to prescribe the punishment therefor, intended to bestow a larger measure of local self-government upon municipalities in respect to the regulation of certain matters usually brought under the police power as subjects of local municipal regulations; but in delegating such power we do not think that it was meant that Congress should surrender its own right of control over the subjects enumerated in the act of April 28, 1904, supra. There is no inconsistency between the dual jurisdictions; and, as the repealing provision of section 8, supra, only went to the extent of inconsistencies between the later and earlier legislation, both acts must be sustained, and effect must be given to both. We therefore hold that the District Court was correct in denying the several pleas and motions which were made to test the jurisdiction of the court.
The next contention of plaintiff in error is that the court should have directed a verdict of acquittal because of a fatal variance between the indictment and the proof, in that the charge is that plaintiff in error did unlawfully keep and set up a house of ill fame for purposes of prostitution, whereas the evidence merely tended to establish that plaintiff in error owned the premises and received rental therefor from a woman who used the place for purposes of prostitution. Under section 186 of the Penal Code of Alaska, all persons concerned in the commission of a crime, whether it be felony or misdemeanor, or whether they directly commit the act constituting a crime or aid in the commission, though not present, are principals, and are to be tried and punished as such, and, by section 188, in misdemeanors there are no accessories. Plaintiff in error argues, however, that the particular acts which establish that a defendant aided and abetted the crime, and thus became in law a principal, must be pleaded in the indictment. To support this position he relies upon People v. Campbell
, 40 Cal. 129, and State v. Gifford, 19 Wash. 464, 53 Pac. 1709. These two cases hold that while it is proper to indict, try, and punish an accessory as a principal, yet that the particular acts which establish that he aided and abetted the crime, and thus became in law a principal, must be stated in the indictment. But in People v. Outeveras, 48 Cal. 19, the case of People v. Campbell, supra, was distinguished and in effect overruled, the court distinctly holding that principals in the second degree and accessories before the fact are all deemed chief actors under statutes generally similar to those in Alaska; that is, they are principals in the first degree in the commission of the crime, and are to be indicted, tried, and punished as such principals. The decision was put upon the ground that the statutes have abolished distinctions between accessories before the fact and principals, and that there is no variance between proofs and allegations if the charge is against one as principal, yet the evidence discloses that he is what has been called an accessory, for the law has declared that the aiding and abetting shall make the offender guilty as a principal, and that he may be charged accordingly. And in the later case of People v. Rozelle, 78 Cal. 84, 20 Pac. 36, the court reaffirmed the doctrine of People v. Outeveras, supra, again overruling People v. Campbell, supra. The case of State v. Gifford, supra, supporting plaintiff in error, was also expressly held to be against the current of recent authorities by the Supreme Court of Montana (State v. Geddes, 22 Mont. 68, 55 Pac. 919), where the earlier decision of the Supreme Court of Washington (State v. Duncan, 35 Pac. 117, v Wash. 336, 38 Am. St. Rep. 888), was cited with approval. See, also, People v. Bliven, 112 N. Y. 79, 19 N. E. 638, 8 Am. St. Rep. 701; Bishop's New Cr. Law, § 674; State v. Kent. 62 N. W. 631, 4 N. D. 577, 27 L. R. A. 686; State v. Rowe, 104 Iowa, 324, 73 N. W. 833; State v. Comstock, 46 Iowa, 265; People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Re;). 857; Boggus v. State, 34 Ga. 275; Stevens v. People, 67 Ill. 587; State v. Jones, 83 N. C. 605, 35 Am. Rep. 586; 1 Enc. Pl. & Pr. 69, 70; 1 Sup. Enc. Pl. & Pr. 14. In State v. Steeves, 43 Pac. 947, 29 Or. 85, the Supreme Court of Oregon passed upon the question now under consideration. A defendant was there jointly indicted with one Kelly for the crime of murder in the first degree. Defendants had separate trials. The defendant Steeves was not present at the killing, but the evidence showed that he counseled and procured his codefendant to kill the
deceased. It was insisted by defendant that, inasmuch as he was charged with the overt act and not as an accessory, his constitutional right to be informed of the nature and cause of the accusation against him was invaded, and that he could not tell by an inspection of the charge that an attempt would be made to prove he was an accessory before the fact. But the contention was held to be unsound, the court pointing out that the statute of the state which abrogated distinctions between accessories before the fact and principals, and authorized all persons concerned in the commission of a felony, whether they directly committed the act constituting the crime or aided and abetted in its commission, though not present, to be indicted, tried, and punished as principals, was valid, and that, when the law abolished distinctions between classes of offenders, an indictment charging one with the doing of the overt act substantially informed him of the nature and cause of the accusation against him. In Lowenstein v. People, 54 Barb. (N. Y.) 299, it was decided that a man who rents a house to be kept as a disorderly house, and which is so kept with his knowledge, especially where he derives a profit from that mode of using the property, may well be called the keeper of the house and be punished as such. And in People v. Erwin, 4 Denio (N. Y.) 129, it was held that the owner of a house who rents it to be used and kept as a house of prostitution is to be deemed a keeper of a bawdyhouse, and is liable to indictment and conviction as the keeper of such a house. The Court said:
"In misdemeanors there are no accessories. All who procure, counsel, aid, or abet the commission of the crime are principals.”
The federal courts adopt the same rule, recognizing that the old distinctions which only pertained to felonies are generally abrogated, and that a charge against one formerly known as an accessory before the fact is good against him as principal. United States v. Snyder (C. C.) 14 Fed. 554; Toledo Ry. Co. v. Penn. Co., 54 Fed. 1736, 19 L. R. Á. 387; United States v. Stevens (D. C.) 44 Fed. 140.
Our conclusion is that where a statute has done away with former distinctions between principal and accessory before the fact, as it has in Alaska, a charge against one formerly known as an accessory is good against him as principal, and that he must answer to the proofs whether they disclose that he was present and did the overt act, or, not being present, aided and abetted the doing of it in a way to make himself · liable as a principal.
It is next insisted that the court erred in overruling the challenges for cause to a number of jurors. Nearly every juror who sat was retained over the objection of plaintiff in error. Several of the jurors said they had prejudices against the keeping of bawdyhouses, that they knew the locality in the city of Nome described in the indictment and were prejudiced against it, but that they did not know the defendant, and would not convict him unless the prosecution established guilt beyond a reasonable doubt. It is evident that some of the jurors sat upon juries in the trials of other cases where defendants were charged with like offenses, and had formed opinions of more or less strength by reason of having heard the evidence in such other cases; yet their examinations failed to disclose such a knowl