in a great measure upon the construction and particular language of those statutes and, of course, to that extent can have little or no application to the question as it is presented in this case. In others a distinction is drawn between the terms "bawdy-house" and "house of ill fame" and they hold that where the latter terms are employed they are to be taken in their strict etymological sense, and that they put directly in issue the fame or reputation of the house itself; and hence it is both permissible and necessary to prove that reputation in the only way in which it can be proved. Others again ignore this distinction and hold the terms to be synonymous. In speaking of all these authorities Mr. Bishop, after stating the proposition in which they all agree (and to which we assent), that it is competent in all such cases to prove by reputation the character for lewdness of the inmates of the house and of those who frequent and visit it, though such evidence pertains in a certain sense to hearsay says: Some carry this doctrine a step further and accept the reputation of the house for bawdy as competent evidence, prima facie, that it is a bawdy-house. Others, and probably the majority, reject the evidence in accordance with the humane principle, that a man shall not be condemned for what his neighbors say of him.”1 And in our opinion a majority of the best considered decisions do hold, and upon correct principles, that such evidence is not admissible in cases like this at common law. Thus in Caldwell v. State, 2 Storrs, J., speaking for the court in an extremely well reasoned opinion, after holding that upon the proper construction of the Connecticut statute, under which the prosecution was had, it was necessary for the prosecution to prove in the first place, the general reputation of the house and in the next, its actual character as a brothel, and that such reputation of the house could be proved, like any other fact, by the testimony of witnesses having knowledge of its existence, and in the same manner as the reputation of a person for truth or any other quality is proved, distinctly says: "Testimony as to the reputation of the house would be clearly inadmissible for the purpose of proving that it was in truth a brothel, and such testimony, if offered for that purpose, would be obnoxious to the objection that it is a mere hearsay." So in the more recent case of State v. Boardman,3 where the statute among other things declared that "all places used as houses of ill fame, resorted to for the purpose of lewdness or gambling are common nuisances" and therefore in this respect, merely re-enacted the common law, a party was indicted for keeping a house of ill fame, and the question was distinctly presented whether evidence of the reputation of the house as being a bawdy-house was admissible. The court, after holding that the offense charged was that of a common nuisance, that the terms 'house of ill fame' and 'bawdy house' are synonymous, and that the gist of the offense consists in the use and not in the reputation of the house, decided that the testimony was inadmissible, because it was mere hearsay evidence and that on trial of an indictment for a nuisance it is not admissible to show that the general reputation of the subject of the nuisance was that of a nuisance. The judgment in that case was reversed because of the error in admitting such evidence and all the judges concurred in the curt remark of note of Judge Peters, that the house must be proved to be a house of ill fame by facts and not by fame. And in the still more recent case of Toney v. State,1 it was held that under an indictment for keeping a bawdy-house, evidence of the general reputation of the inmates of the house, but not of the house itself, is admissible for the prosecution. A similar ruling was made in State v. Lyon,2 where the indictment was for "leasing a house for the purposes of prostitution and lewdness." In the District of Columbia where the common law on this subject prevailed, two cases arose directly involving the admissibility of such evidence. The first was that of United States v. Gray,3 (decided in 1826) where the testimony was admitted (the Chief Judge Cranch, doubting). But this decision was overruled by the second and subsequent case of United States v. Jourdaine,4 (decided in 1833) in which Thurston, J., is reported to have changed his opinion since the case of United States v. Gray; and a majority of the court held the evidence inadmissible, thus setting the law for that court upon this question, for the only point decided in United States v. Stevens,5 (which has sometimes been referred to as sustaining the admissibility of such evidence), was that the general reputation of persons who frequented the house was admissible. When the charge is simply that of "keeping a common, disorderly house," the authorities, almost without exception, exclude this species of evidence, and hold that the nuisance must be shown as an existing fact and not by evidence of reputation. These decisions all rest, as it appears to us, upon the elementary rule of evidence which excludes hearsay testimony. The common law is studiously careful to exclude such testimony, and does not allow its introduction in order to convict parties on trial for common-law offenses. We take it to be clear that a man's general bad character or 1 60 Ala. 977. 2 39 Iowa, 379. 3 2 Cranch, C. C. 675. 44 Cranch, C. C. 384. reputation can not be brought up against him when he is on trial for a specific crime, unless he first opens the way by an attempt to prove his good character; and we hold it to be generally clear that the fact that a crime has been committed can not be proved by common rumor or general repute. The decisions which hold this evidence admissible (when they are not founded on the language or interpretation of a statute, seem to rest its admissibility mainly upon the grounds of necessity, or rather the difficulty of obtaining direct evidence, because the operations of such houses are necessarily shrouded in secresy. But when it is open to the prosecution to prove the general bad character for chastity of the female inmates of the house, that it is frequented by reputed strumpets and that men are seen to visit it at all hours of the night as well as the day, we do not think there can be any very great difficulty in obtaining such direct evidence as will warrant a jury in convicting. If, however, such difficulty or necessity does in fact exist, a remedy can be easily and speedily provided by legislation changing rules of evidence for such cases. It is not the province of the courts to change or relax those rules in order to facilitate convictions in a particular class of offenses. We can not convert the common saying, "what every body says must be true," into a legal maxim, nor can we justify the introduction of such evidence upon the ground that it will do no harm, because it may very rarely occur that a place acquires the general reputation of being a bawdy-house without being one in fact. Until the Legislature intervenes and prescribes differently, the same rules of evidence must govern the trial of a party accused of this offense which govern in all other criminal trials, and which have so governed from the time when trial by jury under the common law was first instituted. For these reasons we hold there was error in the ruling excepted to, and the appellant is, therefore, entitled to a new trial. HOUSE OF ILL FAME-PROOF MUST BE OF ACTS AND NOT OF REPUTE. STATE v. BOARDMAN. [64 Me. 523.] In the Supreme Court of Maine. 1. Under a Statute Making the Keeping of a house of ill fame resorted to for lewdness a common nuisance, "house of ill fame" means the same thing as "bawdy house." And the gist of the offense being the use of the house for lewd purposes, and not its reputation, evidence of the reputation of the house is not admissible. curb and the boundary line, convenient for pedestrians, and placed shade trees and hitching-posts at the outer edge of the payment. Held, not a nuisance. The following opinion was delivered by HERMAN, P. J.: On the trial of this indictment the jury returned the following verdict: "Boiling Springs is a village unincorporated, containing five hundred inhabitants. Third Street, as shown by the plan, was laid out and dedicated by Dr. Kauffman to public use as a street and public highway over twenty years ago. As opened and dedicated, it was thirty-six feet wide. The defendant, Houck, owner of a house built within six inches of the line of this street, put in curbstones and laid a pavement eight feet wide, being seven and one-half feet into the highway, along his house and lot, and planted six trees and put in two hitching-posts along the outside edge of the pavement. If this amounts to a nuisance in law, then we find the defendant guilty in manner and form as he stands indicted; if not, then not guilty, and the county to pay the costs." The question for the court now is, do these acts thus done by the defendant constitute a nuisance in law? It is clear that they would be a nuisance, if the public street be thereby rendered inconvenient or dangerous to pass upon. This is not the case of a house erected or inclosure made upon any part of the highway, which being in its strict legal sense a purpresture, is always, from its very nature, considered a nuisance per se. Such were the cases of Respublica v. Caldwell,1 Commonwealth v. McDonald, Commonwealth v. King, and Commonwealth v. Wilkinson, cited by the coun sel for the Commonwealth. But here I am asked to say that a pavement laid on the margin of a public street, by an individual lot-owner along the line of his lot, in a populous village, and six trees and two hitching-posts planted and placed by him along the outside edge of the pavement, constitute a public nuisance, without it appearing that the street has been thereby rendered inconvenient or dangerous to pass upon, or that any part of it has been diverted from the ordinary and accustomed use of a village street, and this, too, although the street be thereby rendered more convenient and safe for travelers. This I can not do. A pavement or sidewalk in a village street is surely as essential to the ease and safety of public travel as is a carriage-way, and the want of either would be more likely to cause that kind of a nuisance resulting from the want of proper reparations. This is not merely a carriage-way, but a village street aid out and dedicated as such to the public use, and is, therefore, to be used and enjoyed as such public ways are ordinarily and customarily used and enjoyed. The people of unincorporated towns and villages have, I think, been universally accustomed to construct and maintain pavements or sidewalks on the margins of their public streets, for the accommodation, convenience and safety of pedestrians, and I can find no adjudicated case in which their right to do so has ever been questioned. Indeed, our act of the 6th of April, 1868, not only recognizes the lawfulness of such constructions, but provides for their protection, for it provides that "in all cases where sidewalks have been constructed in unincorporated towns and villages, or upon any public road, it shall not be lawful for any person to ride, lead or drive any beast of burden thereon; and if any person (not the owner of the property upon which such sidewalk is constructed, or on which it abuts), shall willfully ride, lead or drive, or cause to be driven any beast of burden thereon, such person shall, for every such offense, forfeit and pay a sum not less than $5, nor more than $10 to be sued 11 Dall. (U. S.) 150. 2 16 Serg & R. (Pa.) 390. 313 Metc. (Mass.) 118. for and recovered as fines and pecuniary penalties are recovered under the seventy fifth section of the act of June 13th, 1836," etc.1 What the law protects can not be regarded as a nuisance in law, for it is the policy of the law to abate, not protect, a public nuisance. That the pavement was constructed by the owner of the property on which it abuts, and not by or under the direction of the town supervisors, does not make the act a nuisance. It has never been considered the business of the supervisors to construct pavements or sidewalks, especially is it not their business to do this upon a village street, laid out and dedicated as this street was. The right of the defendant to construct, and of the people to the use of the pavement, in no way depended on the will or pleasure of the township supervisors. Nor does the width of this pavement, being seven and one-half feet on a street thirty-six feet wide, furnish a sufficient reason for declaring it a nuisance per se. Assuming that a pavement of the same width be also laid on the opposite margin, ample space still remains for a carriage-way. The six trees planted by the defendant along the outside edge of the pavement is in accordance with such a general practice, long prevailing in this region of the country, that it is hard to understand how any one can regard them as a nuisance in law. To say that they are, seems an absurdity. But that they are not, is put beyond any doubt by the act of the 2d of May, 1879,2 which was passed to encourage the planting of trees along the roadsides in this Commonwealth, and provide for their protection. What the laws of the Co.nmonwealth thus encourage and protect will not be denounced as a public nuisance, unless, in fact, the highway be thereby rendered inconvenient or dangerous to public travel. Hitching-posts placed as these were along the edge of a pavement in a village street, I do not consider as constituting a nuisance per se. These posts would be more likely to cause annoyance to the defendant himself than to the public. I do not mean to say that a pavement can not be constructed in such a manner or that trees or hitching-posts may not be so placed in a village street as to create and canse an indictable nuisance, if, in fact, the public street were thereby rendered inconvenient or dangerous to public travel. What I decide is, that upon the facts of this case, the defendant having laid down a pavement seven and one-half feet in the width on the margin of the village street abutting on his own property, and placed six trees and two hitching-posts along the outside edge of the pavement- the street being thirty-six feet wide - it does not necessarily follow, as a legal consequence that these acts constitute a public nuisance. It must, therefore, be entered as the verdict of the jury that the defendant is not guilty, and that the county pay the costs. § 274. Illegal Act of Officers. It is a defence to an indictment for obstructing a road, that the officer had no authority to make it or made it illegally.3 § 275. Street not Accepted. It is not an indictable nuisance to obstruct a street which has been dedicated but not accepted by the municipality, or one not recorded as required by law.5 1 Purd. Dig. 1285, pl. 109. 2 Pamph. L. 47. This act directs that any person who plants on his own premises, at the side of any public highway, any tree of suitable size, shall be allowed $1 for every four trees so set out, in abatement of his road tax. It imposes a penalty on any person who shall cut down, kill or injure any living tree planted as aforesaid. 3 Ward v. State, 12 La. 469 (1883). 4 Gedge v. Com., 9 Bush, 61 (1872); State v. Bradbury, 40 Me. 154 (1855). And see State v. Whittaker, 66 N. C. 630 (1872). 5 People v. Lawson, 17 Johns. 277 (1820). |