Gambar halaman
PDF
ePub

chaste woman -a single prostitute does become a bawdy house, because she may habitually admit one or more men to illicit cohabitation with her. The common law did not undertake the correction of morals in such cases, but left the parties to spiritual supervision and penances. No doubt, however, in such cases our act of 1805,1 would be applicable, if the criminal conversation was such as to amount to cohabitation. But a bawdy house was of criminal cognizance at common law upon different principles, which were, that the public peace was endangered by drawing together crowds of dissolute, debauched and quarrelsome persons, and also, that the morals of the people were corrupted by the open profession of lewdness. A bawdy house is not the habitation of one lewd woman, but the common habitation of prostitutes — a brothel. That such is the just notion of this offense is very clear from Pierson's Case.3 It was there held, that an indictment will not lie for being a bawd and unlawfully procuring evil disposed men and women to meet and commit whoredom and fornication; for it is but a solicitation of chastity; and like a want of chastity in any individual, was a spiritual offense; and the indictment should have been for keeping a common bawdy house, which is there described as an offense committed by one who has a house or a room, and there with accommodates and entertains lewd people to perpetrate acts of uncleanness - plainly meaning, acts between the persons thus entertained. Hence, in the precedent given by Mr. Chitty, which he says is that in common use, the house is laid to be 'a common bawdy house; ' and it is averred that in the said house for lucre and gain, divers evil disposed persons, as well men as women and whores, there unlawfully and wickedly did receive and entertain, and in which said house the said evil disposed persons and whores by the consent and procurement of the said, etc., etc., there did commit whoredom and fornication, whereby divers unlawful assemblies, riots, affrays, etc., and dreadful, filthy and lewd offenses were committed, to the common nuisance,' etc. It is true, that in the form found, for instance in Archbold's Criminal Practice, the house is not, as in Chitty described as 'a bawdy house' eo nomine; yet all the constituents of the offense in other respects are specially averred, according to the definition of the offense already given and Chitty's precedent."

§ 302.

[ocr errors]

Disorderly House-Must be a Common Nuisance. So keeping a disorderly house is not indictable unless it is a common nuisance, "because a house may be disorderly without being injurious to any but the inhabitants and it is the injury done to the public which is the essence of the offense." In State v. Wright, the defendant and five sons lived in the country remote from the public road and made loud noises and uproar on the occasion of their getting drunk, but only two families were disturbed. It was held that he was not indictable.

§ 303.

cient.8

[ocr errors]

House of Ill-Fame One Act of Illicit Intercourse not Suffi

- In Commonwealth v. Lambert, the court say: "The permission by the keeper of a house of a single act of illicit intercourse within it does not of itself

1 Rev. Stats., ch. 34, sec. 46.

21 Hawk. P. C., ch. 74.

3 1 Salk. 382; 2 L. Raym. 1197

4 2 Cr. L. 40.

p. 481.

Hunter v. Commonwealth, 2 S. & R.

298 (1816).

76 Jones, 25 (1858).

8 State v. Garing, 74 Me. 152 (1882).

912 Allen, 177 (1866).

§ 248.

Clubs. The officers of a social club whose steward furnishes the members with food and with beer by the glass at a fixed price, to be consumed at the club, the money so received being applied to the expenses of the club, is not guilty of selling beer.1

$249 Prescription by Physician.—"If a physician upon his professional judgment that a sick person needs brandy, administers it as a medicine, in good faith and charges for it, he is not to be punished, because such liquor properly used, is a valuable medicine."

§ 250. Druggist Selling Intoxicating Liquor as Medicine. — In State v. Mitchell,3 NAPTON, J., delivering the opinion of the court, said: "The defendant was indicted for selling whisky in quantities under a gallon. It appeared on the trial, that he was a dealer in drugs and medicines, and was also family physician to the person who purchased the whisky, and that he had prescribed it to be used in combination with certain barks as a tonic mixture for the purchaser's wife. The purchaser, however, used a portion of the whisky as a mere beverage for himself and gave a dram or two of it to some of his visitors. This was in the absence of the defendant and without his knowledge, so far as it appeared, and occurred at the purchaser's house after the whisky was brought from the store of the defendant. The defendant, under the instructions of the court, was convicted.

"In our opinion, the conviction was wrong. It is not, we apprehend, the intention of the act authorizing druggists to sell spirituous liquors, to require them to institute a strict inquisition into the motives and objects of persons dealing with them, either in the purchase of medicines or liquors which are treated as such; much less are required any domiciliary inquisitions in order to be assured that no fraud has been practiced on them or on the law. Such an inquisition would be as odious as it would be impracticable and useless. The law has not pointed out any mode by which dealers in drugs and medicines, who are expressly authorized to sell spirituous liquors for medical uses, are to ascertain whether the liquors are bona fide intended and applied for the purposes assumed by the purchaser. It may be that there would be inherent difficulties in framing such a law. At all events, the law contains no such provisions. The Legislature, for reasons of public policy satisfactory to them, have thought proper to confine the dealing in liquors in small quantities to a certain class of merchants whose main business is the sale of medicines. Such dealers are allowed to sell brandy and whisky and other liquors of this description for the same purposes they are authorized to sell calomel and opium and other drugs. They have no more means of ascertaining, nor has the statute provided them with any, whether the brandy or other liquor is used for such purposes, than they have to ascertain whether the opium or calomel is. The Legislature did not make them responsible for any evasion of the law by persons purchasing from them. Such a responsibility, indeed, it is plain, would render the privilege nugatory and impracticable. It may have been thought that much might be intrusted to the intelligence and good character of the class of dealers to whom the privilege was conferred, and although liable to abuse, that much good would still be effected. However this may be, the de

1 Seim v. State, 55 Md. 566 (1880). And, see, Com. v. Pomphret, ante p. 650.

2 State v. Larrimore, 19 Mo. 391 (1854).

3 28 Mo. 563 (1859).

fendant was not only a druggist, and therefore authorized to sell whisky, but as a physician he had prescribed it be used in the family of the purchaser. Surely the Legislature never intended to subject him to a criminal indictment and heavy fine because the purchaser used a portion of it himself, or permitted his neighbors or servants or any portion of his family to use it for purposes other than those for which it was sold.

"Judgment reversed and case remanded. The other judges concur.'

$ 251.

Acts of Hospitality — Giving away liquor as an act of hospitality is not within the law.1

$ 252.

Buyer not Within the Law. Nor is the purchaser of liquor

within the law.2

[ocr errors]

§ 253. Liquor Selling — Good Faith in Selling to Minor. A druggist selling liquor to a minor on a physician's prescription in good faith, that it is to be used for medicinal purposes, is guilty of no offiense.3 In Ball v. State, BIDDLE, C. J., said: "Prosecution, by affidavit and information, against the appellant, for selling intoxicating liquor to Albert G. Naylor, a minor. A motion to quash the proceedings was properly overruled, and needs no further notice.

"The appellant pleaded not guilty, was tried by a jury, convicted and fined. "The evidence and instructions are properly before us, and errors regularly assigned questioning their validity.

"Albert G. Naylor testified: 'My name is Albert G. Naylor; am going to school, at Waveland; live, when at home, at Terre Haute; I got liquor from the defendant which was intoxicating; got it for medicinal purposes; the liquor I got was called "Warner's English gin," put up in sealed bottles; I got the liquor on the 2d day of May, 1873, took it to my room at my boarding-house, and got intoxicated on it on the 3d of May; I told the defendant, when I first went to him, I wanted it as a medicine; he refused to let me have it; I then went to Dr. Steele, after seeing him; I took a prescription from the doctor to Mr. Ball (defendant); on the prescription, I got the gin; I am sixteen years old.'

"On behalf of the defence, Dr. A. F. Steele testified: 'I am a physician engaged in a general practice; have been practicing sixteen years at Waveland; I made no examination of Naylor, but made the prescription on the statement he made of his condition, and what he had been using for the disease before, at Terre Haute; the gin was a remedial and proper medicine for the treatment of the disease that he represented to me he was laboring under.' (Prescription shown him.) 'I gave this prescription to young Naylor.'

"The defendant, Zephaniah M. Ball, testified (here the prescription was shown and read to the jury: 'May 1, 1873. R. English gin, one bottle, for A. G. Naylor. Steele.') 'The prescription was presented to me by young Mr. Naylor; he came complaining of being sick, and wanted the gin, and I told him I could not sell it to him, and refused to let him have it; he went away, and in two or three hours afterwards came back with the doctor's prescription; I then let him have a bottle of gin; it is called "Warner's English gin," and comes in bottles sealed up, with paper covers; this gin is an intoxicating liquor; I regarded the prescription of Dr. Steele as a bona fide prescription, and sold the gin to young Naylor in the utmost good faith.'

1 Albrecht v. State, 78 Ill. 510.

2 Harney v. State, 8 Lea., 113 (1881).

3 State v. Wray, 72 N. C. 253.

4 50 Ind. 593.

Ryland (with him Laurie), for the prosecution. If the place be so constructed that the passers by can see what takes place within, it is sufficiently public. CRESSWELL, J. Suppose it to be an enclosed stall in a market.

Ryland. The public generally would not have a right, as a matter of course, to go in there. Here the place is entirely open to such of the public as choose to enter it. The market is public, the enclosure within it is so also; and it can not be urged by those who took the risk of having their conduct witnessed by several persons that the place was not a public place for the purposes of this indictment. As to the case,1 there only one individual was alleged to have seen the act none.

CRESSWELL, J. And here there is an exposure of one of the parties charged to the other.

Ryland. But the indictment goes further: It alleges that one laid his hands on the person of the other, etc., and that the other submitted, etc.

CRESWELL, J. Here you say he did a certain act tending to something else, which something else ought to be described. In R. v. Rowed the meeting for the purposes there generally set out was held not sufficient. You do not rely upon the act itself as the offense; it is the intent with which it was done; then the intent is very much in the same terms as that alleged in R. v. Rowed, which was held defective.

Ryland. In that case no act was stated to have been done. It was merely alleged that the parties met for the purpose of doing certain things, describing them generally. Here it is stated that certain acts were done, which we rely on as evidence of an attempt to commit a felony.

CRESSWELL, J. Although the place in question is in Farringdon Market, it is not a public place for the purpose of this indictment. Every man must expose his person who goes there for a proper purpose. R. v. Watson decides that the exposure to one person is not sufficient. Then the acts relied on here are not sufficient of themselves to constitute an offense, and that offense, which, it is alleged, they were an incitement to commit, is not described in sufficiently legal language. An incitement to commit a felony described in proper terms would be a very different charge from the present one. ERLE, J., concurred.

§ 312.

Instruments to Prevent Conception. -The common law does not prohibit the sale of instruments to prevent conception; nor does the stat ute law of Pennsylvania.2

§ 313.

Lewdness-Must be in Public.

-Lewd conduct, to be indict

able, must take place in a public place. On a public highway is not necessarily in a "public place." 4

§ 314. tion. - In order to constitute this crime within the Illinois statute, the parties must dwell together openly and wantonly as if they were married. There must be habitual illicit intercourse between them. "The object of the statute was to prohibit the public scandal and disgrace of the living together of persons of opposite sexes, notoriously in illicit intimacy which outrages public decency,

Lewdness-Living together in an Open State of Fornica

1 R. v. Watson.

2 Com. v. Leigh, 15 Phila. 373 (1881).

3 State v. Kennison, 55 N. H. 242 (1875).

4 Williams v. State, 64 Ind. 553 (1878).

having a demoralizing and debasing influence upon society. They may indeed live together in the same family, but if apparently chaste, regularly occupying separate apartments, a single instance of illicit intercourse would not constitute the crime.1

§ 315.

"Lewdly and Laciviously Cohabiting."-This also means open and notoriously living together as husband and wife. Therefore it is held that proof of two acts of illicit intercourse between the parties is not sufficient.2 "By cohabiting must be understood a dwelling or living together, not a transient or single indiscreet interview.""

4

§ 316. "Open and Gross Lewdness and Lascivious Behavior”- Acts must be public. — In Commonwealth v. Catlin, in the first count it was charged that the defendant, being a married man, committed the above offense by lying on a bed with one A. D., she, A. D., not being his wife. The second was the same, the act being his putting his arms around A. D. The third was the same as the first, but at a different time. The evidence in support of the first charge arose from the testimony of a witness who said that on the day mentioned in the indictment, and in the day-time, he was at the dwelling-house of A. D., and that he there saw the defendant on a bed with her, in a very familiar situation. This witness testified that the bed was in a room, the doors of which were shut, and the window-shutters of the front windows closed, but that he saw the defendant and A. D., by looking through the glass, or a broken pane of glass, he did not recollect which, of an end window. The same witness testified that on the same day in the day-time, he saw the defendant throw his arms about the said A. D. and hug her; this, he said, was in the stoop or piazza of the dwelling-house, the witness being in the house, and seeing the transaction through a door-way, the door being partly shut. In support of the third count, another witness testified that in the evening of the day mentioned in that count, when it was very dark, he was sitting in a room of the same dwelling-house alone; that A. D. was in an adjoining room (the door of communication between the two rooms being open) sitting on a bed; that while he was so sitting in the room, a man, whom he believed to be the defendant, passed through the room in which the witness then was, went into the other room to the said A. D., there being no light in the same, except a dim light arising from the fire in the chimney, sat down on the bed with her, and that the defendant and A. D. soon after both got upon the bed, where they were together about fifteen minutes, when the defendant arose from the bed, and went away, without seeing the witness, as he believed. The counsel for the defendant offered no evidence, but contended that as open gross lewdness was charged, and that only in the indictment, the evidence on the part of the government did not in any degree support the charge; nothing more being proved, at the utmost, than secret acts. The court (STRONG, SEDGWICK, SEWALL, and THATCHER, Justices) were unanimously of opinion, and STRONG, J., who charged the jury, stated it as the unanimous opinion of the court, that although it might be true that the facts proved amounted to an offense, yet that they did not prove the

1 Searls v. People, 13 Ill. 597 (1852).

2 State v. Martin, 12 Iowa, 499 (1861). And it is a joint offense, of which both par

ties must be guilty or neither. Delaney v.
People, 10 Mich. 241 (1862).

3 Com. v. Calef, 10 Mass. 153 (1813).
4 1 Mass. 7 (1804).

« SebelumnyaLanjutkan »