De Forest v. United States

11 App. D.C. 458, 1897 U.S. App. LEXIS 3140
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 16, 1897
DocketNo. 728
StatusPublished
Cited by23 cases

This text of 11 App. D.C. 458 (De Forest v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Forest v. United States, 11 App. D.C. 458, 1897 U.S. App. LEXIS 3140 (D.C. Cir. 1897).

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

This is the first appeal taken to this court from the Police Court of the District of Columbia under the act of Congress of March 2, 1897, authorizing such appeals. By information filed in that court the appellant was charged with keeping and maintaining a common bawdy house; and being by the verdict of a jury found guilty, she has brought her cause here upon exceptions to the rulings of the trial court in the course of the cause. Three of these exceptions have reference to the admission of evidence, six to action of the trial court in the matter of instructions to the jury, and one to the refusal of the trial court to allow a motion in arrest of judgment.

With reference to the first class of exceptions specified, it appears that at the trial an officer of the police force was called by the prosecution to testify that he had caused the arrest of the appellant upon information given to him by a former female inmate of the appellant’s house; that another officer was also called in corroboration of the previous wit[460]*460ness, and to state in detail the statements concerning the appellant’s business that had been made by the female inmate referred to, who, it seems, had in the meantime left the city; and that thereupon objection was made on the part of the appellant to such statements, and a motion was made to strike them out, which the trial court declined to do. ' And this is here assigned as error.

But while if objection had been interposed at the proper point, this testimony might possibly have been excluded as hearsay, and therefore as irrelevant, it does not follow that after it had been introduced without objection the parties have the right afterwards to go back and to move to have it stricken out. The allowance of such a motion is usually a matter of discretion with the trial court, which can not properly be reviewed on appeal. Davis v. Patton, 19 Md. 120; Cecil Bank v. Heald, 25 Md. 562. That there are cases where such motion should prevail, and where it would be error not to allow it, may be admitted. But such cases would generally be those in which the objection could not have been taken more seasonably. For it is undoubtedly a wise rule of practice that objections to the admission of testimony must be interposed seasonably; that is, ordinarily as soon as the testimony is offered and before it is adduced. Alexander v. United States, 138 U. S. 353; Bull v. Schoberth, 2 Md. 38. Otherwise, there would be no order in the introduction of testimony. And it is also a well settled rule of practice that when objection is made to the introduction of testimony the specific ground of objection should be stated, so that it may appear upon the record, and also that the other party may have an opportunity to obviate it. This rule is fortified by repeated decisions of the Supreme Court of the United States. Toplitz v. Hedden, 146 U. S. 252; Noonan v. Caledonia Gold Mining Co., 121 U. S. 393. Neither of these rules, the one which requires objection to be interposed seasonably, and that which requires the specific ground of objection to be stated, seems to have been observed in the present instance-[461]*461Nor are we at all certain from the circumstances of the record that the testimony here in question was absolutely inadmissible.

At a subsequent stage of the case, it was sought on behalf of the defence to elicit from a witness called on that side a statement of the reason given to her by a preceding witness who had testified for the prosecution as to the reason .why she had so testified. This was excluded by the trial court, upon its appearing that no one else was present at the conversation. Whether the ground here stated for the exclusion of the proposed testimony was a correct one, we need not stop to consider. Plainly there is no error manifested here by the record. It does not appear how the proposed testimony was in any way relevant. There is no specific offer of proof, as should have been made, if it wras intended to rely upon any such testimony; and it is impossible from the record to conjecture its purpose, unless it were to impeach the credibility of the preceding witness; and for that no sufficient foundation had been laid by the interrogation of the witness sought to be impeached.

At the conclusion of the testimony for the prosecution, and again at the conclusion of all the testimony, motion was made on behalf of the appellant that the jury should be directed to render a verdict in her favor, on the ground that the prosecution had failed to make out a case against her. The first motion, of course, was waived by the defendant's going into testimony; and both motions are equally untenable on the record. There was certainly enough in the case to warrant its submission to a jury; and the trial court would not have been justified upon the evidence in withdrawing it from them.

An instruction was asked by the defendant “that unless it was shown that the defendant is individually guilty of acts disorderly in themselves, the jury should find for the defendant;” and error is assigned upon its refusal. The refusal was so clearly proper that argument upon the subject [462]*462would be wholly superfluous. The mere keeping of a bawdy house, where others and not the keeper commit acts of immorality, is of itself a disorderly act; and a person may be guilty of a criminal offence in so doing whose conduct may be otherwise unobjectionable, or even irreproachable.

And a similar remark will apply to another instruction asked, to the effect “ that the attendants of the house are not patrons thereof, and that any act of adultery committed by them does not per se constitute a bawdy house.” It is the act of immorality committed by the attendants of a house so-called with the so-called patrons of it that constitute the bawdy house; and such were the acts apparently disclosed by the testimony in this case.

Error is also assigned upon the refusal of an instruction requested on behalf of the appellant, to the effect “that in order that the defendant’s house should be declared a bawdy house the burden of proof is upon the Government to show that it is open, notorious and scandalous to the public, and in the event of the failure of the Government to show that such house is so open, notorious and scandalous for its disorder, then the jury should find for the defendant.” And in support of this proposition are cited the cases of Brooks v. State, 2 Yerger (Tenn.), 482, and King v. People, 83 N. Y. 587. But the case of Brooks v. State is not in point, and that of King v. People maintains a proposition directly the reverse of that for which the appellant contends.

In the case of Brooks v. State, the indictment was for an offence, lewdness, which, in order to be indictable, must necessarily have been open, notorious and a public scandal. And to that effect are the old English authorities cited in the opinion.

The case of King v. The People was, like the present case, a prosecution for keeping a bawdy house; and there the Court of Appeals of the State of New York said :

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Bluebook (online)
11 App. D.C. 458, 1897 U.S. App. LEXIS 3140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-forest-v-united-states-cadc-1897.