§ 1452. As has just been seen,' 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-houses; or whether it be because at common law a "house of ill-fame," as a scandal to the community, is per se indictable; or whether because no other proof can often be had; it has been ruled, though on questionable authority, that the "ill-fame" or "bad reputation "3 of the house may be proved. But however this may be, it is settled that the bad reputation of the persons visiting the house may be put in evidence."

It is, in any view, 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 ill-fame, or a bawdy-house, as the case may be ; and the fact that a house kept bonâ fide for public convenience is sometimes resorted to by persons of ill-fame does not necessarily make it a house of ill-fame.2 All concerned in "keeping" such house, if they take part in its government, are "keepers," no matter what may be its extent; though the fact that a prostitute is an inmate of such a house does not by itself make her a keeper,

5

§ 1453. Ownership may be proved by admission, or by acts of authority, or by record. It cannot be shown by reputaOwnership tion, but is to be inferred from the circumstances in proved inproof. It is not proved by occupation of a particular tially.

room in the house.8

1889.

feren

2 McElhaney v. State, 12 Tex. App. 231, 1882; Harmes v. State, 26 Tex. App. 190, 1888; Johnson v. State, 28 Tex. App. 562, 1890.

3 Com. v. Gannett, 1 Allen, 7, 1861; Harlow v. Com., 11 Bush, 610, 1876; People v. Buchanan, 1 Idaho, (N. S.) 681, 1878. Infra, & 1460; Territory v. Stone, 2 Dak. 155, 1879; Stone v. State, 22 Tex. App. 185, 1886; Johnson v. State, 32 Tex. Cr. 504, 1893;

Ala. 82, 1877; State v. Hand, 7 Iowa, State V. Jackson, 42 Kans. 384, 411, 1858; State v. Lyon, 39 Ibid. 379, 1874; O'Brien v. People, 28 Mich. 213, 1873; King v. State, 17 Fla. 183, 1879; Morris v. State, 38 Tex. 603, 1873; Sylvester v. State, 42 Ibid. 496, 1873; Territory v. Chartrand, 1 Dak. 379, 1877; Cook v. State, 22 Tex. App. 511, 1886; Com. v. Noonan, 15 Phila. 372, 1881; Com. v. Clark, 145 Mass. 251, 1887; State v. Schaffer, 74 Iowa, 704, 1888; State v. Tombs, 79 Iowa, 741, 1890; Sullivan v. State, 75 Wis. 650, 1890; People v. Hulett, 15 People v. Wright, 90 Mich. 362, N. Y. Sup. 630, 1891; Whitlock v. 1892. Where proof was held insuffiState, 4 Ind. App. 432, 1891; Winslow v. State, 6 Ind. App. 306, 1892. But the reputation of the owner herself may not be put in evidence, see Gamel v. State, 21 Tex. App. 357, 1886.

That single illicit acts will not constitute a bawdy-house, see State v. Garing, 74 Me. 122, 1882; State v. Evans, 5 Ired. 603, 1845; Smalley v. State, 11 Tex. App. 147, 1881.

1 State v. Brunell, 29 Wis. 435, 1872. The judge must not take away the decision of this point from the jury.

cient to show defendant a keeper, see Rabb v. State, (Tex.) 13 S. W. Rep. 1600, 1890. As to soliciting female to enter house of ill-fame, see People v. Cook, 96 Mich. 368, 1893.

Toney v. State, 60 Ala. 87, 1877. 5 State v. Worth, R. M. Charl. 5, 1811; Biles v. State, 25 Tex. App. 441, 1888.

6 State v. Hand, 7 Iowa, 411, 1858; Allen v. State, 15 Tex. App. 320, 1884. 7 State v. Wells, 46 Iowa, 662, 1877; Couch v. State, 24 Tex. 557, 1859. 8 Toney v. State, 60 Ala. 97, 1877.

common

§ 1454. Tippling-houses, when conducted noisily and in such a Tippling way as to breed disorder and crime, are, as has been seen, houses in indictable at common law; nor will a license to sell liquor dictable at shield the defendant when tried specifically for the nuilaw. sance. Nor, in prosecutions for a nuisance, can a tavernkeeper, 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. And of a tippling-house, as such, it is an essential condition that there should be habitual selling, directly or indirectly, of spirituous liquor by retail.5

Married

dictable for

§ 1455. A married woman may be indicted for keeping a house of ill-fame, either with or without her husband, and a woman in- husband living in the house, and there exercising acts of keeping 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.7

house.

§ 1456. So far as concerns disorderly houses, nuisances to all the neighborhood need not be proved, nor, if the house be shown to be disorderly, is proof of outside riot or disorder in the vicinity necessary. On the other hand, a single

Proof of general nuisance is enough.

1

Supra, 1449, where the cases are given; and see, more fully, infra, 1498.

* Supra, 1424; State v. Buckley, 5 Harring. 508, 1855; State v. Mullikin, 8 Blackf. 260, 1846. See U. S. v. Elder, 4 Cranch C. C. 507, 1835; State v. Ambs, 20 Mo. 214, 1854; Archer v. State, 10 Tex. App. 482, 1881; Com. v. Wallace, 143 Mass. 88, 1886.

Supra, & 1449.

Supra, 1411, 1431 c.; State v. Buckley, 5 Harring. 508, 1855. But see, under Iowa statute, Shepard v. People, 40 Mich. 487, 1879. As to special disorder on Sunday, see supra, 1431; Wilson v. Com., 12 B. Mon. 2, 1851.

5 U. S. v. Columbus, 5 Cranch C. C. 304, 1837; Com. v. McDonough, 13

Allen, 581, 1866; State v. Burchinal,
4 Harring. 572, 1845; Bloom huff v.
State, 8 Blackf. 205, 1846; State v.
Thornton, Busbee, 252, 1853.

6 R. v. Williams, 1 Salk. 384, (10 Anne); 10 Mod. 64; Com. v. Lewis, 1 Metc. 151, 1840; Com. v. Cheney, 114 Mass. 281, 1873; State v. Bentz, 11 Mo. 27, 1847. Supra, 76, 81,

1449.

7 Com. v. Wood, 97 Mass. 225, 1867. See Scarborough v. State, 46 Ga. 26, 1872.

8 Com. v. Davenport, 2 Allen, 299, 1861.

9 R. v. Rice, L. R. 1 C. C. 21, 1866; U. S. v. Columbus, 5 Cranch C. C. 304, 1836; State v. Webb, 25 Iowa, 235, 1868. See Sylvester v. State, 42 Tex. 496, 1875.

riot does not create a disorderly house,' nor does a single act of lewdness, nor even continuous acts of lewdness by one person, make a bawdy-house. But the 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 thinly settled neighborhood, were disturbed, this was held not to amount to a common nuisance.1

The question of admissibility of reputation is elsewhere discussed.

A house of assignation, where parties meet for the purposes of debauchery, is indictable as a bawdy or disorderly house, though no prostitutes live there.

But

§ 1457. That the offence need not be lucri causa has been mainly determined as a matter of pleading. on principle the expectation of pay is not essential to the offence.8

Offence

need not be lucri

causa.

A room or a tent may

§ 1458. Proof of the use of a single room for purposes of general prostitution will support an indictment for be a keeping a "house" for such purposes. And a canvas

1

Supra, 1449; Mains v. State, 42 Ind. 327, 1833; Dunnaway v. State, 9 Yerg. 350, 1836.

2 State v. Evans, 5 Ired. 603, 1845; and cases cited supra, 1422. See R. v. Pierson, 1 Salk. 382, (4 Anne).

3 Hunter v. Com., 2 S. & R. 298, 1816; Mains v. State, 42 Ind. 327, 1873.

* State v. Wright, 6 Jones, (N. C.) 25, 1858. See State v. Mathews, 2 Dev. & Bat. 424, 1837.

"house."

1846;

State v. Nixon, 18 Vt. 70,
Com. v. Wood, 97 Mass. 225, 1867;
State v. Williams, 1 Vroom, 102, 1863;
State v. Webb, 25 Iowa, 235, 1868.
See State v. Bailey, 1 Fost. 185, 1850;
People v. Hampton, 4 Utah, 258, 1886.

9 Com. v. Howe, 13 Gray, 26, 1859; Com. v. Hill, 14 Ibid. 24, 1859; Com. v. Butman, 118 Mass. 456, 1875; State v. Garity, 46 N. H. 61, 1855; State v. Main, 31 Conn. 572, 1863; and see Clifton v. State, 53 Ga. 241, 1874. In

5 Supra, 1452; Whart. Crim. Ev. People v. Bixby, 67 Barb. 221, 1875; (9th ed.) ? 58 et seq.

R. v. Pierson, 1 Salk. 382, (4 Anne); People v. Rowland, 1 Wheeler C. C. 286, 1823; People v. Hulett, 15 N. Y. Sup. 630, 1891.

See supra, ?? 1449-51; State v. Porter, 38 Ark. 637, 1882; State v. Lee, 80 Iowa, 75, 1890.

4 Hun, 636, an immoral exhibition of
women in a room which was not open
to the public generally, but only to
such as were permitted to enter and
paid therefor, was held to be in a
"public place" within the statute
against indecent exposure.
But see
State v. Barr, 39 Conn. 40, 1872. As

tent may

be a "house" in the same sense; and so may a boat on a river, when used as a habitation.2

§ 1459. At common law it is an indictable offence not only to keep a house of ill-fame, or to be in any way concerned

Letting

house of ill-fame

indictable

law.

3

in the same, but to let a house, knowing it is to be used for the purpose of prostitution; though in New York at common 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 in itself an offence punishable by indictment. Subsequently, however, the doctrine held in the latter case was qualified, and 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 is indictable. 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, supposing the house to be so kept. If, however, the landlord has absolutely no control, and when leasing was ignorant of the intended use, he is not responsible for letting the house with

sustaining text, see State v. Main, 31 Conn. 572, 1863; State v. Mullen, 35 Iowa, 199, 1872; State v. Smith, 15 R. I. 24, 1885; Haring v. State, 53 N. J. L. 664, 1891, for a disorderly house in general.

1 Killman v. State, 2 Tex. App. 222, 1877; though see Callahan v. State, 41 Tex. 43, 1874.

Graeter v. State, 105 Ind. 271, 1885;
State v. Frazier, 79 Me. 95, 1887; also
letting out single rooms to prostitutes.
State v. Smith, 15 R. I. 24, 1885.

That the lessor may be charged as keeper of the house, see State v. Lewis, 4 Tex. App. 567, 1878; Stevens v. People, 67 Ill. 587.

5 People v. Brockway, 2 Hill, (N.

2 State v. Mullen, 35 Iowa, 199, Y.) 558, 1842. 1872.

3

6 People v. Townsend, 3 Hill, 479,

Supra, 1449; Harlow v. Com., 11 1842. See, also, to same effect, Ross Bush, 610, 1876. v. Com., 2 B. Mon. 417, 1842.

U. S. v. Gray, 2 Cranch C. C. 675, 1826; Com. v. Harrington, 3 Pick. 26, 1825; Smith v. State, 6 Gill, 425, 1848; People v. Saunders, 29 Mich. 269, 1874; State v. Potter, 30 Iowa, 587, 1870.

That a landlord is responsible for whatever he causes or is able to prevent or correct, see James v. Harris, 35 L. T. 240, 1876; Gandy v. Jutter, 5 B. & S. 78, 1864; Nelson v. Brewery Co., L. R. 2 C. P. D. 311, 1877;

"Com. v. Harrington, ut supra; People v. Erwin, 4 Denio, 129, 1847; Smith v. State, 6 Gill, 425, 1848; but see contra, R. v. Barrett, L. & C. 263, 1862-a case, I think, erroneously decided. See supra, 1422. In Ohio the offence is indictable by statute. Act of April 11, 1856. People v. Wallach, 15 N. Y. Sup. 226, 1891; People v. Miller, 15 N. Y. Sup. 516, 1891; People v. O'Melia, 22 N. Y. Sup. 465, 1893.