State v. Boardman

64 Me. 523

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1874
• Status: Published

Opinion

Dickerson, J.

The defendant is indicted for ‘keeping a house of ill-fame, resorted to for the purposes of prostitution and lewdness. The offence charged is that of a common nuisance. The language of the statute is as follows : “All places used as houses of ill-fame, resorted to for lewdness or gambling, for the illegal sale or keeping of intoxicating liquors, are common nuisances.” If. S., c. 17, § 1. Section 2 of the same chapter makes “any person keeping or maintaining such nuisance,” liable to fine or imprisonment in the county jail.

The terms “house of ill-fame” and “bawdy house” are synonymous. “A bawdy house,” says Bouvier, “is a house of ill-fame, kept for the resort and unlawful convenience of lewd people of both sexes.” So Archbold defines a bawdy house to be a house kept for the resort and convenience of lewd people of both sexes. 1 Bouvier’s Law Die., h. t.; 2 Archbold’s Grim. Prac. & Plead., 1667; 1 Bishop’s Crim. Law, (5th ed.,) 1083; McAllister v. Clarke, 33 Conn., 92.

The common signification of the word corresponds with its technical meaning. “A bawdy house,” says Worcester, “is a house used for lewdness and prostitution; a brothel.” The idea conveyed by the term “house of ill-fame,” or its synonym “bawdy house” is that of a house “resorted to for the purposes of lewdness and prostitution.” A “house used as a house of ill-fame” is a house thus resorted to; it cannot be so used unless it is thus resorted to, and if it is resorted to for such purpose it is “a house used as a house of ill-fame,” in the purview of the statute, though it may not have that reputation. The phrase “resorted to for lewdness,” contained in the statute does not qualify, enlarge or change the meaning of the preceding clause in this case ; the statute, in this case, has the same meaning and application without as with that phrase.

In order to make out the offence charged in the indictment under our statute, it is necessary to establish two things: first, that the house was used as a house of ill-fame; and, second, that the defendant kept it. The gist of the offence consists in the use, not in the reputation of the house. Its reputation for lewdness and prostitution may be ever so clearly established, and yet if the evidence does not show that it was in truth used for those purposes, the first element in the offence is not proved ; but if that is made out, it is immaterial what the reputation of the house was, or whether it had any. The reputation of the house, under our statute, makes no part of the issue. Testimony as to its reputation has no tendency to establish the issue that it was in fact used as a house of ill-fame, and is inadmissible as mere hearsay evidence. On trial of an indictment for a nuisance, it is not admissible to show that the general reputation of the subject of the nuisance charged was that of a nuisance. 2 Wharton’s Crim. Law, § 2367; 3 Greenl. on Ev., (6 th ed.,) 186 ; 2 Bishop’s Crim. Proc., § 91. The judge in the court below erred in admitting such evidence.

We are aware that the court in Connecticut, in Cadwell v. The State, 17 Conn., 467, held that to support such an information, under the statute of that state, it is necessary to prove that the general reputation of the house was that of a bawdy house, and that it was such in fact. To establish the first proposition the court in that case admitted evidence of the reputation of the house, but distinctly say that such testimony would be clearly inadmissible to prove that the house was in fact a house of ill-tame. We have seen that under the phraseology of our statute it is not necessary to prove the reputation of the house; and the case of Cadwell v. The State, 17 Conn., 467, thus becomes authority for excluding evidence of reputation in this case. 2 Bishop’s Crim. Proc., § 91.

Evidence of the reputation of the women frequenting the house and the character of their conversation and acts in and about it is competent in such cases, as the judge ruled. Commonwealth v. Kimball, 7 Gray, 328; Commonwealth v. Gannett, 1 Allen, 8.

The judge also properly overruled the defendant’s plea. Ware v. Ware, 8 Maine, 42; Public Laws of 1868, c. 151, § 6.

Exceptions sustained.

Appleton, O. J., Walton, Barrows, Yirgin and Peters, JJ., concurred.

The chief justice and concurring justices appear also to have assented to this note upon the case by

Peters, J. The house must be proved to be a house of ill-fame by facts and not by fame.