doctrine, certainly in principle, therefore, is, that neither in allegation nor in the proofs need the minor locality within the county appear, the ordinary rules applying to this offence the same as to most others. 1

II. The Evidence.

$ 112. Reputation of Frequenters. — A bawdy-house being indictable because corrupting to the public morals,' evidence is admissible that it is frequented by reputed strumpets and rakes ; for by the characters of such frequenters its business is advertised, and the intent of the keeper is evinced. Moreover, the fair presumption is, that the coming together of such persons, male and female, where opportunities are provided, is for bawdry, and that their conduct there corresponds with the object of their coming. And though reputation pertains in a certain sense to hearsay,4 it is still proper evidence of character.5

$ 113. Reputation of House. — Some carry this doctrine a step further, and accept the reputation of the house for bawdry as competent evidence, prima facie, that it is a bawdy-house. Others, and probably the majority, reject this evidence, in accordance with the humane principle, that a man shall not be condemned for what his neighbors say of him.7

§ 114. Reputation of House under Statutes. The statutes in some of our States are construed as making the offence itself consist, partly or altogether, in the evil reputation of the house. Then the reputation not only may, but must, be proved.8

1 Vol. I. $ 370; Lowe v. The State, 4 Clementine v. The State, 14 Misso. 112; Texas Ap. 34. And see People v. Saun Commonwealth v. Kimball, 7 Gray, 328; ders, 29 Mich. 269.

Commonwealth v. Gannett, 1 Allen, 7; 2 Crim. Law, I. $ 500, 734, 1083.

The State v. McDowell, supra. 3 Post, $ 116; The State v. McDowell, .6 The State v. McDowell, Dudley, Dudley, S. C. 346, 349; Commonwealth S. C. 346, 349; Territory v. Chartrand, 1 r. Cardoze, 119 Mass. 210; McCain v. Dakota, 379. See O'Brien v. People, 28 The State, 57 Ga. 390 ; United States v. Mich. 213. Stevens, 4 Cranch C. C. 341; The State 1 The State v. Boardman, 64 Maine, v. Hand, 7 Iowa, 411; The State v. Lyon, 523; The State v. Lyon, 39 lowa, 379; 39 Iowa, 379; Sylvester v. The State, 42 Commonwealth v. Stewart, 1 S. &. R. 312; Texas, 496; The State v. Boardman, 64 People v. Mauch, 24 How. Pr. 276. See Maine, 523; The State v. Brunell, 29 The State v. Brunell, 29 Wis. 435. And Wis. 435; O'Brien v. People, 28 Mich. see Crim. Law, I. § 1088. 213; Harwood v. People, 26 N. Y. 1990. 8 Crim. Law, I. § 1088; Cadwell v. 4 Vol. I. § 1081.

The State, 17 Conn. 467; The State v. 5 Vol. I. § 1117; 1 Greenl. Ev. $ 55; Brunell, 29 Wis. 435. See The State v.

$ 115. Specific Acts — of bawdry in the house need not be

shown ;l though, if offered, they are admissible in connection with other proofs.?

$ 116. Usual Evidence. – The evidence commonly tendered and received is, “ that notoriously reputed prostitutes and libertines were in the habit of frequenting the house during the time laid in the indictment; "3 and, where it can be shown, that actual lewd behavior took place therein ;4 together with the disturbance it created, if any, to the peace, good order, and consequent enjoyment of the neighborhood. Yet,

Neighbors disturbed. Where the other facts are sufficient, it will not justify the keeper to prove that the neighborhood was not disturbed. And

Hearsay. — Mere conversations of men, held after coming out of the house, not in the presence of the keeper, are inadmissible ; being in the nature, simply, of hearsay evidence.7

$ § 117. Arrests, &c. — Frequent arrests, in the house, of known prostitutes, or of women convicted thereon of prostitution, and other attendant circumstances, are competent in evidence that it is a bawdy-house. So,

Procuring Women. In one case, evidence that the defendant went and procured a woman from a distance to come and live in the house, was held admissible in connection with the other facts. Even

Refusal to testify. — The refusal of witnesses who have frequented the house, to testify to the conduct of the inmates and

Morgan, 40 Conn. 44; The State v. Hand, 3 Fowler, J. in The State v. McGregor, 7 Iowa, 411. It has been held that evi. 41 N. H. 407, 413; Greig v. Bendeno, dence of the bad reputation of the house Ellis, B. & E. 133; Commonwealth v. prior to the statute going into effect is Gannett, 1 Allen, 7; ante, § 112. admissible in aid of the proofs of its sub- 4 Ante, $ 115; Clementine v. The sequent character. Cadwell v. The State, State, 14 Misso. 112. supra.

5 Clementine v. The State, supra , i The State v. Brunell, 29 Wis. 435, Commonwealth v. Stewart, 1 $. & R. 488.

342. ? Ante, & 107; O'Brien v. People, 28 6 Crim. Law, I. $ 1087; CommonMich. 213; McCain v. The State, 57 Ga. wealth v. Gannett, supra; Barnesciotta 390; Commonwealth v. Cardoze, 119 v. People, 10 Hun, 137 ; People v. RowMass. 210; Commonwealth v. Stewart, 1 land, 1 Wheeler Crim. Cas. 286. S. & R. 342. And see The State v. Foley, 7 Commonwealth v. Harwood, 4 Gray, 45 N. H. 466; United States v. Jourdine, 41. 4 Cranch C. C. 338 ; United States v. 8 Harwood v. People, 26 N. Y. 190. Nailor, 4 Cranch C. C. 372; Mahalovitch 9 The State v. McGregor, 41 N. H. o. The State, 54 Ga. 217.

407.

V.

visitors, on the ground that thereby they would degrade theinselves, has been deemed proper matter for consideration by the jury:

$ 118. That Defendant is Keeper. — Keeping does not necessarily require ownership, even such as is created by a lease and occupancy thereunder;2 but it is constituted by such control over the house and its inmates as pertains to the head or heads of a household. A prostitute merely occupying a room is not the keeper. And one may become keeper in law by aiding the

4 keeper in fact. Moreover, one who holds himself out as keeper is presumed to be such.

Knowledge of Keeper. - As bawdry carried on in a house without the knowledge or acquiescence of its keeper would not subject him to punishment, it is proper to receive against him such evidence as that he bailed s or secreted persons arrested therein,

9 that the prostitution was open, and notorious, and the like.10

III. The Letting of the House for Bawdry.11 $ 119. Indicting as Keeper. — One who lets a house for bawdry

§ is on principle, and by the better American authorities, indictable as keeper when it is so used.12 But because this is sometimes denied, 13 and for various other reasons, it may, in general, be practically better to draw the indictment on the

$ 120. Special Facts. - For this offence, as for most others, the indictment may, if the pleader chooses, be drawn on the special facts. 14 And perhaps it must be under some of the statutes. There should be a proper averment of the time of making the

15

i Clementine v. The State, 14 Misso. 9 Mahalovitch v. The State, 54 Ga. 112.

217 2 Crim. Law, I. § 1084; ante, § 107. 10 The State v. Wells, 46 Iowa, 662. See People v. Townsend, 3 Hill, N. Y. 11 For the law of this sub-title, see 479.

Crim. Law, I. § 1090–1096. 8 Crim. Law, I. § 1084, 1085, 1095, 12 Ib. ; People v. Erwin, 4 Denio, 129; 1096; The State v. Wells, 46 Iowa, 662, Lowenstein r. People, 54 Barb. 299. 665.

13 Crim. Law, I. $ 1095 ; Common4 Crim. Law, I. § 1085; Moore v. The wealth v. Johnson, 4 Pa. Law Jour. Rep. State, 4 Texas Ap. 127.

398. 5 Clifton v. The State, 53 Ga. 241. 14 Commonwealth v. Harrington, 3 See Crim. Law, I. $ 1090–1096.

Pick. 26. 6 The State v. Hand, 7 Iowa, 411. 16 Crofton v. The State, 25 Ohio State, 7 McCain v. The State, 57 Ga. 390. 249. 8 Harwood v. People, 26 N. Y. 190.

contract of letting ; 1 but, unless it is stated descriptively, it need not be proved as laid. The name of the lessee should be given, or a reason assigned for its omission. And the facts of the offence should be set out, yet not necessarily mentioning the day when the lease was to commence or end.4

$ 121. Evidence (Knowledge). — Knowledge by the lessor of the unlawful use intended must appear; 5 as, for example, by evidence that the lessee was of evil repute, or the like. And in all respects the full offence as defined by law must be shown.7

§ 122. Conclusion. — The allied titles, especially Disorderly House and Nuisance, and the chapter in " Criminal Law," should be consulted in connection with this chapter.

I Commonwealth v. Moore, 11 Cush. ment. See, likewise, The State v. Abra600.

hams, 6 Iowa, 117; Harlow v. Common3 Commonwealth v. Harrington, 3 wealth, 11 Bush, 610. Pick. 26. See post, $ 161, 260.

6 The State v. Leach, 50 Misso. 535. 3 Commonwealth v. Moore, supra. 6 People v. Saunders, 29 Mich. 269.

Smith v. The State, 6 Gill, 425. See 7 Abrahams v. The State, 4 Iowa, 541 this case, also, for a form of the indict. under $ 2742 of the Code.

CHAPTER VIII.

BLASPHEMY AND PROFANENESS.1

§ 123. Form of Indictment. - The gist of these offences, considered apart from the intent, consists of words either oral or written. Yet perhaps there may be a pantomime, picture, or image, indictable on the ground that it is blasphemous. If so, the indictment will follow the rules governing libels of this sort.3 And the indictment for blasphemous and profane words is drawn on the same familiar pattern with the indictment and declaration for oral and written slander and libel. Thus,

In Hearing. — Profanity is not sufficiently charged as uttered in a public street, it must be alleged as in the hearing of divers persons.

Whether All. — All the words uttered need not be set out, but only so many connected ones as constitute an offence.6

Tenor. — The words, whether spoken or written, should be set forth according to their tenor, not simply their substance. But,

$ 124. In General. — Seeing that under other titles the principles which regulate this proceeding are stated, further particu lars are not required here. In practice, most indictments for this offence will be drawn upon statutes. And the practitioner will

I For the law of these offences, see 6 Post, $ 791; The State v. Steele, Crim. Law, II. § 73 et seq.

supra. Compare with Rutherford v. 2 Ib. § 76.

Evans, 6 Bing. 451, 4 Moore & P. 163; 8 Post, $ 795, 796.

Tabart v. Tipper, 1 Camp. 350, 352. 4 See, for example, form in 2 Chit. 7 Vol. I. $ 559–563; post, $ 789; The Crim. Law, 13.

State v. Barham, 79 N. C. 646; Rex v. 6 The State v. Pepper, 68 N. C. 259; Sparling, 1 Stra. 497; Rex v. PoppleThe State v. Barham, 79 N. C. 646. well, 1 Stra. 686; Rex v. Chaveney, 2 Compare with Ware v. Cartledge, 24 Ld. Raym. 1368. Compare with Taylor Ala. 622; Burton v. Burton, 3 Greene, v. Moran, 4 Met. Ky. 127; Watson v. Iowa, 316; Hurd v. Moore, 2 Oregon, 85; Musick, 2 Misso. 29; Parsons v. Bellows, Brown v. Brashier, 2 Pa. 114; Bradshaw 6 N. H. 289; Bassett v. Spofford, 11 N. H. v. Perdue, 12 Ga. 510; Burbank v. Horn, 127; Zeig v. Ort, 3 Chand. 26. 89 Maine, 233. And see The State v. Steele, 8 Heisk. 135.