Newport police, under the authority of a search warrant, raised a house in which they found Kitty Shawhan having sexual intercourse with a young man. Present, and allegedly in charge of bedroom operations, was Charles Schweinefuss. Kitty Shawhan, Charles Schweinefuss and the young man were thereupon arrested and taken before the police court. The young man was charged with a breach of peace but the record does not disclose what became of the charge. Kitty Shawhan was charged with prostitution in violation of KRS 436.075(2) and Charles Schweinefuss was charged with setting up and operating a house of prostitution also in violation of KRS 436.075(2) Samson Eisner, the alleged owner of the property, was later arrested on a warrant charging him with violating every offense denounced by KRS 436.075(2). Kitty Shawhan, Charles Schweinefuss and Samson Eisner were tried and convicted in the police court and each appealed to the Campbell Circuit Court. In the Circuit Court, over the objection of each defendant and after motions by each for separate trials, an order was entered directing that the three of them be tried together. They were tried together and all were convicted. Kitty Shawhan's punishment was fixed at a fine of $200 and one year in jail. Charles Schweinefuss' punishment was fixed at a fine of $200 and six months in jail. Samson Eisner's punishment was fixed at a fine of $200 and one year in jail.
On this appeal Samson Eisner complains that the trial court erred in overruling his motion for a separate trial and in ordering, over his objection, that he be tried with Kitty Shawhan and Charles Schweinefuss. Under the authority of Shawhan v. Commonwealth, Ky., 318 S.W.2d 541, rendered on this day, and for the reasons therein stated, the Court is of the opinion that the trial court erred in refusing appellant a separate trial and for that error the judgment must be reversed.
The appellant, however, complains of further errors upon which we must pass because of the probability of another trial.
Appellant was arrested and tried upon a warrant which, together with the supporting affidavit, reads as follows:
"Affiant, Pat Ciafardini, Detective Newport Police Department, states that Samson Eisner, a/k/a Sammy Eisner, on the 1st day of June, 1957, in the City of Newport, Campbell County, Kentucky, committed the offense of Engaging in and/or Aiding, Assisting and Abetting Prostitution - KRS 436.075, which said offense was committed as follows, viz: The said Samson Eisner, a/k/a Sammy Eisner, did wilfully and unlawfully engage in and/or aid, assist and abet prostitution, and/or procure or solicit person or persons for the purpose of prostitution and/or keep or set up a house of ill fame, brothel, or bawdy house, and/or receive person or persons for the purposes of lewdness, assignation or prostitution into a building or structure known and designated as 202 York Street, in the City of Newport, Kentucky, and/or lease or rent or contract to lease or rent the premises known and designated as 202 York Street, in the City of Newport, Kentucky, knowing or with good reason to know that it was intended to be used for the purposes prohibited by and denounced in KRS 436.075, all of which is against the peace and dignity of the Commonwealth of Kentucky.
"Subscribed and sworn to before me this 3rd day of June, 1957.
"(signed) Gladys Schulte, Notary Public in and for Campbell County, Ky.
"Commission expires 2/23/61
"The Commonwealth of Kentucky
"To the Chief of Police of Newport, Kentucky.
"You are commanded to arrest Samson Eisner, a/k/a Sammy Eisner, and bring him forthwith before me to answer the charge set out, and then and there have ...