#### E. C. Crofton *v.*The State of Ohio.

1. An indictment, under section 1 of the act of April 11,1856 (S. & 0.879), which contains an averment that the accused, who was the owner of a certain house, knowingly permitted one M. to use and occupy the same for the purpose of prostitution, is sufficient, without an averment, in so many words, that the house was in fact so used and occupied hy M.

2. A conviction under such indictment should have been set aside where the only facts proved were, that the defendant who had innocently and in good faith leased the premises for a term, afterward refused, during the term, to avoid the lease, and to re-enter and take possession, upon being informed that the lessee was using the property for such illegal purpose.

*2503. Section 2 of said act confers upon the lessor the power to avoid the lease for the cause therein stated; hut the omission on his part to exercise the power, is not an offense under the statute.

Error to the Court of Common Pleas of Hamilton county.

The plaintiff in error was indicted and convicted under the first section of the act of April 11,1856 (S. & C. 879), which provides, “ That any house or building situate within this state, used or occupied as a house of ill-fame, or for the purpose of prostitution, shall be held and deemed a public nuisance; and any person owning or having the control of, as guardian, lessee, or otherwise, such house or building, and knowingly leasing or subletting the same in whole or in part for the purpose of keeping therein a house of ill-fame, or knowingly permitting the same to be used or occupied for such purpose, or using or occupying the same for such purpose, shall for every such offense be deemed guilty of a misdemeanor,” etc.

Section 2 of the act provides, “ That the use or occupation by the lessee or tenant of any house or building, or any part thereof, for the purpose prohibited in the first section of this act, shall be held by the courts of this state good cause on the part of the owner or lessor to avoid the agreement of lease or renting, and to re-enter at any time and take possession of such house or building.”

The indictment, after stating the time and place of the alleged offense, charged as follows: “He, the said E. C. Crofton, whose more full Christian name is to the grand jurors aforesaid unknown, then and there being the owner of a certain house there situate, unlawfully and knowingly did then and there permit one Mitchell, a female, whose Christian name is to the grand jurors aforesaid unknown, to use and occupy said house for the purpose of keeping therein, then and there, a house of ill-fame, and therein, then and there, to keep divers, to wit, five female persons, whose names are to the grand jurors aforesaid unknown, for the purpose of prostitution, with intent that they, the five female persous aforesaid, whose names are to the grand *251jury aforesaid unknown, should therein, then and there, have illicit carnal intercourse and commit whoredom with divers, to wit, ten men whose names are to the grand jury aforesaid unknown, contrary,” etc.

To this indictment the accused interposed a demurrer, which was overruled.

Afterward, the accused pleaded “ not guilty,” and on the trial it was proved that in December, 1869, the accused rented the house in question, of which he was the owner, to Mitchell for the term of one year, at the rate of $50 per month, which was the reasonable rental value of the premises. That he did not lease the property for the purpose of keeping therein a house of. ill-fame. It was shown, however, that during the term, Mitchell, the lessee, used the house for the purpose of prostitution ; that the accused was informed of the fact that it was being so used; and,, though requested so to do, he refused or neglected to avoid the lease and to re-enter and take possession of the property.

No other testimony was offered tending to show that the' accused “ knowingly permitted ” the house to be used for1 purposes of prostitution.

In its charge, the court instructed the jury that “if the defendant found that Mrs. Mitchell was keeping a house of ill-fame in the premises, and, after his attention was called to it by remonstrances from people living in the neighborhood, refused to take any steps to determine the tenancy, or to induce Mrs. Mitchell, to move or to abstain from such use of the premises, such refusal would amount to an acquiescence in her keeping such house.”

The following are assigned for error : 1. The overruling the demurrer to the indictment; 2. The charge as given to the jury; 8. The refusal to set aside the verdict and grant a new trial.

*Fox §*Bird, for plaintiff in error :

The indictment is defective, in not stating that the house was used and occupied as a house of ill-fame. If this ap*252pear at all in the indictment, it is by implication, which is ■not sufficient. *Hall*v. *The State,*3 Ohio St. 575; 1 Bishop, (3 ed.) 225; 1 Chitty’s Crim. Law, 141.

In order to convict the owner of a house of the crime of permitting a tenant to keep a house of ill-fame, the landlord must do some act which amounts to an agreement that the tenant may so use the house.

Having once fairly rented it for an honest purpose, his control has ceased during the existence of the lease, and is not embraced within the statute. 6 Iowa, 118. He is not obliged to institute proceedings to abate the nuisance, *McAlister*v. *Clark,*33 Conn. 93; nor to remonstrate, 1 Vroom, 105.

*W. M. Ampt,*prosecuting attorney, for the state:

1. Under the act making houses of ill-fame public nuisances, 1 S. & C. 879, where a landlord rents his house in good faith for a specified time, but not for the purpose of prostitution, but the house is thus used, and he becomes informed of it, and takes no steps to avoid the contract of rental, he is criminally liable for permitting the house to be so used, especially if he fail to object or protest. The sec■ond section of the act referred to, makes it incumbent on the landlord to bring suit to eject the tenant in order to avoid personal liability.

2. If a landlord be not reasonably diligent in selecting his tenant, and she proves to be guilty of illegally using the premises, he is chargeable.

3. Under this act, the landlord reserves so much control of his property by operation of law as to give him authority to interfere, and if he fail to do so, he will he held to consent or permit the use. 4 Iowa, 541; 6 lb. 118; 1 Leigh & Cave, 263.

MoIlvaxne, C. J.

There was no error in overruling the demurrer. The only objection made to the sufficiency of ■the indictment is, that it does not contain an averment that the house was in fact used and occupied for the pur*253pose of prostitution. It is not claimed that, under this statute, an averment that prostitution was in fact practiced-in the house is essential. The point made is that the indictment should show that the house was in fact used for that purpose. The distinction between such averments would be the difference between certainty to a certain intent in particular, and certainty to a certain intent in general — the latter degree of certainty being all that is required in criminal pleadings; and we think it is found in this indictment. There is no substantial difference between. an averment, that A permitted B to use and occupy a. house for a certain purpose, and the averment that A permitted the house to be used and occupied by B for such purpose.

The indictment in this case describes the offense substantially as it is described in the statute, with the further' averment that the accused, unlawfully and knowingly, permitted Mitchell to keep in said house certain females for the purpose of prostitution, with intent that such females-should therein have illicit carnal intercourse with men.

The unlawful use of the house by Mitchell, with the - knowledge and permission of the accused, is sufficiently averred in the indictment.

Upon the whole record, however, we think the defendant below was improperly convicted.

This statute seeks to prevent the evil of prostitution by suppressing houses of ill-fame. All houses or buildings-used or occupied for such purpose, are declared to be public nuisances. It also punishes the owner or person having the control of such places in each of the following cases:. 1. Eor knowingly leasing or subletting the same for such purpose. 2. Eor knowingly permitting the same to be used- or occupied for such purpose. 3. Eor using or occupying' them for that purpose.

The defendant was indicted for the second offense above-named. The testimony showed that he was the owner of the house, and had leased it to Mitchell for a term without any knowledge or intent that it would be unlawfully used1 *254by the lessee. By his contract, he parted with all control over it for the term.

It is true, the lessee, during the term, used it in violation of the statute; but there is no pretense that the defendant assented, in fact, to such use. Indeed, the proof is to the ■contrary; except only in the fact, that he refused to avoid the lease and re-enter, upon being informed that the property was being used in violation of the statute.

The whole case, therefore, resolves itself into this single question: "Was such refusal to avoid the lease and re-enter into the possession an indictable offense under the statute ?

The court below told the jury that “ such refusal would amount to an acquiescence in her keeping such a house ” (that is, as we understand it, sufficient proof of the offense charged), unless the defendant took other steps “ to induce Mrs. Mitchell either to move or abstain from such use of the premises.”

The qualification annexed to this instruction is of no significance. The defendant was under no legal obligation to induce Mitchell to remove or to abstain from the illegal use of the premises. That it was his moral duty to do so, may be admitted; but the omission on his part to take steps to that end, was no offense under the statute. Section 2 of the act confers on the lessor of property the power to avoid his contract of lease for the cause named; but it does not make the omission to exercise the power an indictable offense.

Nor is the offense as declared by the first section, where the owner or person having the control of property, knowingly permits it to be used for the purpose of prostitution, sustained simply by proving that the lessor refused to avoid a lease innocently made, on the ground named in the second section.

*Judgment reversed.*

Welch, White, Rex, and Otlmore, JJ., concurred.