People v. Clark

1 Wheel. Cr. Cas. 288

• Court: New York Court of Common Pleas
• Decided: April 15, 1822
• Status: Published

Opinion

His Honor the Recorder, in passing sentence upon her, observed .that he was sorry to see a woman of her years arraigned upon such a charge; the evidence against her was of such a nature as to leave no doubt in the mind of the Court and jury of her guilt; and it was satisfactorily proved that she had for some time past kept a very bad house, indeed, one of the very worst kind; that houses of this description had become a growing evil, and in all such flagrant cases the Court were determined to make an example; that they were the resort of the youth of our city, where they were often ruined by associating themselves with thieves and rogues of every description, and profligates and prostitutes of both sexes. The law upon these cases had been before stated by the Court at a former session; that pn a prosecution for a disorderly house, the Court would, if the case did not require exemplary punishment, and the nuisance had been abated, send the parties home on their own recognizance, but that the court considered this case a proper one fo.r exemplary punishment, and proceeded to sentence her to the Penitentiary for the period of one year.

She made an application to the Court that her young child might be permitted to accompany her to the Peniten- . tiary.

The application was refused by the Court. They observed to her, that proper attention would be paid to the child by the officers whose duty it was.

She then asked permission that an officer might be allowed to go with her to her house to make a disposition of her goods in it. The Court said all proper indulgence would be given.

Note.—When the importance of prosecutions for disorderly houses are considered, too much attention cannot be bestowed upon them, either as it respects the demoralizing influence they have on society generally, or the immediate injury to persons particularly.

Prosecutions for disorderly houses are very common, there is scarcely a term but one or more cases are tried; and it must be admitted, that in almost every case, a conviction is had upon the most satisfactory and conclusive eivdence.

That those engaged in business so demoralizing, dishonorable and unlawful, may see the danger they are in, and that others may be induced to prosecute from an accurate knowledge of those principles of law that govern those cases, the following skort analysis of the law upon this subject is given.

*Disorderly houses are classed by Blaekstone into inns, bawdy-houses, gaming-houses, unlicensed stage plays, and stages for rope-dancers , and mountebanks. 4 Com. 167.

Of these, some are public nuisances per se, and others per accidens. Of the former, are bawdy-houses and gaming-houses, being directly calculated to corrupt the public morals. 3 Inst. 205. To the latter, appertain inns, theatres, and other .places of public amusement which become offensive only as they attract idle and disorderly persons, and occasion noise, tippling, profane swearing, and indecencies, owing to their misgovernment. Hawk. c. 75. § 7.

1, Keeping a house of ill fame, and encouraging suspicious or disorderly persons to resort thither, is an offence punishable at common law, with fine and imprisonment, o'r other infamous punishment, in the ’discretion of the Court. Hawk. c. 74. 5 Bac. Abr. 146. R. T. Hardw. 278.

If a person be only a lodger, and make use of her room for disorderly purposes, she would be guilty of keeping a bawdy-house as much as if she were the proprietor of the whole house. 2 Lord Raym. 1197. 1 Salk. 382.

A wife as well as a husband, may be indicted for keeping a disorderly house, because the charge does not respect the ownership, but the criminal management of the house. 1 Salk. 384. 5 Bac. Abr. 147.

2. It is clearly agreed, that all common gaming-houses are nuisances in the eye of the law, being detrimental to the public, as they promote cheating and other corrupt practices, and incite to idleness and avaricious ways of gaining property, great numbers whose time might otherwise be employed for the general good of the community. Hawk, c. 75. 56. 5 Bac. Abr. 147.

By the common law, the playing at cards, dice, and other games of chance, merely for the purposes of recreation, and without any view to inordinate gain, is regarded as innocent. 3 Bac. Abr. 335. But a common player at hazard using false dice, is liable to be indicted at common law, and sentenced to the pillory on conviction. 3 Chit. Or. Law, 674, in notis.

Gambling permitted in a public inn or in a grocery, renders the keeper indictable. 1 C. H. Rec. 66. 2 Ibid. 53.

To keep instruments of gambling in a house, and permit persons to play for small sums merely sufficient to pay for the use of such instruments, or for drink, is indictable, being more pernicious than gambling on a high scale. 5 C. H. Rec. 136. 6 Ibid. 87.

3. It seems the better opinion that play-houses having been originally instituted with a laudable design of recommending virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may'only become such by accident; as where they draw together such numbers of coaches or people, &c. as prove, generally, inconvenient to the places adjacent; or when they pervert their original institution by recommending vicious and loose characters under beautiful colors to the imitation of the people, and make a jest of things commendable, serious, and useful. 5 Blac. Abr. 147. Hawk. c. 75. § 7.

Any number of persons may be included in the same indictment for keeping different disorderly houses, stating that they “ severally ” kept, &c. 2 Hale, 174.

In an indictment for keeping a disorderly house, the place is of the very essence of the offence, and should be correctly laid. 1 Starkie. Cr. Law. 61. 3. C. H. Rec. 128.

A house may be proved disorderly by general reputation. 2 Atk. 339. 1 P. R. 752. 1 C. H. Rec. 28.

Particular acts of disorder do not render a house a common disorderly house. 3 0. H. Rec. 134.

This note was furnished by a gentleman in very extensive practice, and well versed in the principles of criminal law.