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head. It is to be remembered, however, that to constitute a bawdy-house it is not necessary that there should be any disorder visible from outside ; x and to constitute a disorderly house it is not necessary that there should be any public prostitution.
2. Form of Indictment. $ 2393. An indictment charging that the defendant kept “ a certain unlawful, disorderly, ill-governed house," " as a common tavern,” “ without license,” “and kept a common tipplinghouse," and therein openly sold spirituous liquors to all persons calling for the same, and allowed the same to be drunk in and about the house at all times, both at day and night, and on Sundays; and permitted certain idle and ill-disposed persons to assemble and continue drinking and tippling, to the common nuisance, &c., is good at common law. y
And so an indictment charging the defendant with “ keeping a disorderly house, and unlawfully procuring, for his lucre and gain, men and women of evil name and fame to frequent it at unlawful times, permitting them there to be and remain, drinking, tippling, and misbehaving themselves, to the great damage and common nuisance of all the liege citizens,” &c., is sufficient. z
§ 2394. An allegation that the party kept such a house on a day specified, and on divers days and times, &c., is sufficient; and it is sufficient if the indictment charge the offence to have been committed“ unlawfully,” without saying “knowingly" or
corruptly.” It is not necessary in such case to allege that the house was kept for lucre and gain. a
An indictment which avers that the defendant unlawfully kept and maintained a house of ill-fame, resorted to for the purpose of prostitution and lewdness, is sufficient, without alleging that the house was resorted to by divers persons, men as well as women, or that the defendant kept it for lucre. 6
$ 2395. That it is enough to simply charge the defendant * R. v. Rice, Law Rep. 1 C. C. 21. Com. v. Ashley, 2 Gray, 356; State v. y U. S. v. Columbus, 5 Cranch C. C. Nixon, 18 Vt. 70.
State v. Collins, 48 Me. 217. b Com. v. Ashley, 2 Gray, 356. See Ante, $ 289.
Wells v. Com. 12 Gray, 326; Com. e. Com. v. Stewart, 1 Serg. & R. Wood, 97 Mass. 225; State v. Homer,
40 Me. 438. a State v. Bailey, 1 Foster, 343 ;
with keeping a “common disorderly house," there are some dieta to maintain. c But this is a loose mode of pleading, for the question of disorder is a wide one, and there are many kinds of disorder which are not indictable, and of which it would be intolerable tyranny for the law to attempt to take cognizance. The proper course is to specify what the disorder is ; e. g. assemblages of persons of both sexes of lewd character, tippling, noise, tumult, &c. d
It is clearly not necessary to name the persons frequenting the house. e
3. Evidence. $ 2395 a. Disorderly house. — Particular acts or states of disorder, inside or outside, may be put in evidence to prove a house to be disorderly ; el but common reputation, or complaint among the neighbors, is not for this purpose admissible. e2 But that the house was frequented by noisy and disreputable persons, without identifying them, may be put in evidence. e3
$ 2395 b. Bawdy-houses admit of a wider range of proof. Whether it be because the term “ House of Ill-fame” is sometimes, by statute, made convertible with Bawdy-house, for whether it be because at common law a “ House of Ill-fame," as a scandal to the community, is per se indictable, and as such the phrase is included in most indictments of this class, we find frequent decisions to the effect that the “ Ill-fame” of the house is a subject of admissible proof. fi And from the necessity of the case, the bad character of the persons visiting the house may be put in evidence.g For, as a general thing, the fact that the house was used for purposes of prostitution can only be proved by circumstantial evidence, of which the reputation of the par
c See Com. v. Pray, 13 Pick. 359 ; 342; Com. v. Hopkins, 2 Dana, 418; R. v. Rogier, 1 B. & C. 272.
U. S. v. Nailor, 4 Cranch C. C. 372 ; d See Wharton's Prec. in loco; Fred- U. S. v. Jourdane, 4 Cranch C. C. erich v. Com. 4 B. Monr. 7; People 338; State v. Foley, 45 N. H. 466 ; v. Jackson, 3 Denio, 101. See ante, Smith v. Com. 6 B. Monr. 21. $ 372.
es State v. Patterson, 7 Ired. 70; e State v. Patterson, 7 Ired. 70. Com. v. Kimball, Gray, 328.
ed Com. v. Davenport, 2 Allen, 299; f Cadwell v. State, 17 Conn. 467. Com. v. O'Brien, 8 Gray, 487; State fi U. S. v. Stevens, 4 Cranch C. C. v. Webb, 25 Iowa, 235; State v. Pat- 341 ; State v. McDowell, Dudley S. C. terson, 7 Ired. 70; Com. v. Stewart, 1 346; U. S. v. Gray, 2 Cranch C. C. Serg. & R. 342.
675. € 2 Com. v. Stewart, 1 Serg. & R. g State v. Gregson, 41 N. H. 407;
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ties is a prominent item. i At the same time it must be remembered that such reputation is only of value as giving inferential proof of the fact of guilt. It is error to charge the jury that they are to convict if the house has a bad reputation. They must only convict if they believe the house to be one of illfame. 21
§ 2396. Ownership may be proved by admission, or by acts of authority, or by record. 22 It cannot be shown by reputation.; And it may be circumstantially established. k
§ 2397. Tippling-houses, when conducted noisily and in such a way as to breed disorder and crime, are, as has been seen, indictable at common law; nor will a license to sell liquor shield the defendant in an indictment for the nuisance. Nor, in prosecutions for a nuisance, can a tavern-keeper, or the keeper of any building open to the public, defend himself on the ground that the disorder is exclusively inside the house, and is not heard outside. Wherever the public has access, there disorder is a public nuisance. But in a private house, to which the public has not access, the disorder must be such as to annoy passers-by or neighbors. 1
4. Husband and Wife. § 2398. A married woman may be indicted for keeping a house of ill-fame, either with or without her husband, m and a husband, living in the house, and there exercising acts of control, cannot defend himself on the ground that the house was owned by his wife, under the married woman's acts, who lived there, carried on the premises, and received all the profits. n
5. Extent of Nuisance. $ 2399. Nuisance to all the neighborhood need not be proved, nor, if the house be shown to be disorderly, is proof of outside
Clementine 0. State, 14 Mo. 112; į State r. Hand, 7 Iowa (Clarke), Com. v. Kimball, 7 Gray, 328; Com. 411. v. Gannett, 1 Allen, 7; Harwood v. k Couch v. State, 24 Texas, 557. People, 26 N. Y. 190; Com. v. Lam- I See ante, $ 2363. bert, 12 Allen, 177.
m Com. v. Lewis, 1 Mete. 151; i See Harwood v. People, 26 N. Y. State v. Bentz, 11 Mo. 27. Ante, 190; State v. McGregor, 41 N. H. 407. $ 78.
į1 State v. Brunell, 29 Wisc. 435. n Com. v. Wood, 97 Mass. 223. iz State v. Worth, R. M. Charl. 5. o Com. v. Davenport, 2 Allen, 299.
riot or disorder in the vicinity necessary.p On the other hand, a single riot does not create a disorderly house, q nor a single act of lewdness, or even continuous acts of lewdness by one person, a bawdy-house. r
Offence need not be lucri causa. — This has been mainly determined as a matter of pleading.pl But on principle the expectation of pay does not enter into the offence.
Offence must be to the public in general. — Thus, upon a charge of keeping a disorderly house, where it appeared that the defendant lived in the country, remote from any public road, and that loud noises and uproar were often kept up by his five sons, when drunk, whom he did not encourage (save by getting drunk himself), but would sometimes endeavor to quiet, by which disorder only two families, in a thickly settled neighborhood, were disturbed, this was held not to amount to a common nuisance. s
6. What is a “House?” $ 2400. Proof of the use of a single room for purposes of general prostitution, will support an indictment for keeping a house for such purposes. t
7. Letting House of Ill-fame. $ 2401. At common law it is an indictable offence to keep a house of ill-fame for lucre, u or to let a house, knowing it is to be used for the purposes of prostitution ;v though in New York the last point was once ruled differently, and it was laid down that to rent a house to a woman of ill-fame, with the intent that it should be kept for purposes of public prostitution, is not an offence punishable by indictment, though it be so kept afterwards. w Soon, however, the doctrine held in the latter case was somewhat qualified, as it was declared, that when it appeared that the owner of lands had either created a nuisance, or continued, or in any way sanctioned its creation or continuance, he was indictable. 2 At present, the law, even in New York, is, that such letting or hiring, with a guilty knowledge, makes the landlord indictable as a principal in keeping the house. y If, however, the landlord has absolutely no control, he is not responsible. z
p U. S. v. Columbus, 5 Cranch C. t Com. v. Hill, 14 Gray, 26 ; State C. 304; R. v. Rice, Law Rep. 1 C. C. v. Garity, 46 N. H. 61. 21; State v. Webb, 25 Iowa, 235. u Jennings v. Com. 17 Pick. 80.
9 Dunnaway v. State, 9 Yerger, v Com. v. Harrington, 3 Pick. 26; 350; Hunter v. Com. 2 S. & R. 298. Smith v. State, 6 Gill, 425; U. S. v.
go State v. Evans, 5 Ired. 603. Gray, 2 Cranch C. C. R. 675. od See ante, $ 2393.
w People ». Brockway, 2 Hill, 558. 8 State v. Wright, 6 Jones Law N. C. 25.
$ 2402. To make a party liable for knowingly permitting his house to be used for the purposes of prostitution, it is said in Iowa to be necessary that he be shown to have done some act, or made some declaration, sufficiently assenting to the premises being so used after he had knowledge of such use. a Mere inactivity, it is said in the same case, or failure to take steps to prosecute, does not make him liable. But, however this may be under the Iowa statute, such acquiescence, it is submitted, after notice, involves a party in the common law offence, in those jurisdictions where this offence is recognized. Clearly is this the case where the lease is renewed (as in cases of leases week by week or month by month) after knowledge by the lessor of the use made by the lessee. Here the lessor supplies the machinery for the maintenance of the nuisance; and according to the views hereinbefore unfolded, is as principal (the offence being a misdemeanor) responsible for such nuisance. b So, also, are all persons mixing in the management. Thus it is no defence to an indictment of this class, that the defendant, who is proved to have control of the building, is not the owner, but merely collects the rents as agent for the owner. C
The indictment, when it rests on a lease, ought accurately to specify the date and terms of the lease, and the name of the lessee, or to give an excuse for non-specification. d An omission of the scienter is fatal. e
x People v. Townsend, 3 Hill, 479. b See ante, § 2374; R. v. Stannard, See also, to same effect, Ross v. Com. L. & C. 349, so far as it conflicts 2 B. Monr. 417.
with the principles just stated, cannot y People v. Erwin, 4 Denio, 129; be accepted as law. but see contra, R. v. Barrett, Leigh & c Lowenstein v. People, 54 Barbour, C. 263,
a case I think erroneously 299. decided. In Ohio the offence is in- d Com. v. Moore, 11 Cush. 600. dictable by statute. Act of April 11, Otherwise when no lease is set forth. 1856.
Smith v. State, 6 Gill, 425. z State v. Williams, 1 Vroom, 102. e State v. Leach, 50 Mo. 535. a State v. Abraham, 6 lowa, 118.