Opinion
(June Term, 1845.)
1. If an indictment sufficiently charge any offense, though not the one intended, it cannot be quashed.
2. A woman cannot be indicted for keeping a bawdy-house merely because she is unchaste, lives by herself, and habitually admits one or many to an illicit cohabitation with her.
3. The offense of keeping a bawdy-house consists in keeping a house or room, and therewith accommodating and entertaining lewd people to perpetrate acts of unchastity, meaning acts between the persons thus entertained.
APPEAL from ROWAN Spring Term, 1845; Bailey, J.
Attorney General for the State.
Clarke for defendant.
The defendant was tried upon an indictment, which the Solicitor alleged to be an indictment for keeping a bawdy-house, and which was in the following words, to wit:
North Carolina,} Superior Court of Law, } ss. Rowan County. } Fall Term, 1844.
The jurors for the State upon their oath present, that Augusta Ann Evans, late of the said county, spinster, on 10 August, 1843, and thence continually to the time of the finding of this bill, and before, in the said county of Rowan, with force and arms, unlawfully did keep and maintain a certain ill-governed and disorderly house, and in the said house then, and on the said other days there, did procure and cause and permit persons of lewd conversation and demeanor to frequent and come together, and then and on the said other days, there to remain drinking, whoring, cursing, swearing and misbehaving themselves, to the great damage and common nuisance of all the good citizens of the said State there inhabiting and living and passing, to the evil example of all others in the like case offending, and against the peace and dignity of the State."
The counsel for the defendant moved to quash the indictment upon the ground that there was no averment in the bill that the (604) persons therein referred to were both men and women. The solicitor for the State contended, that this was implied by the word "persons" taken in connection with the other averments. The judge refused the motion. It appeared in evidence that the defendant occupied an upper chamber in the east end of a house in the town of Salisbury, that there was a broad passage extending through the house above and below stairs, dividing the house into two parts, and that the entrance into the house from the street was by a door leading into the lower passage. A witness named Taylor testified that he occupied the west end of the house in question with his family, renting it from the owner who was not the defendant; that on several occasions he had known persons to pass up the stairs and go into the defendant's chamber, and afterwards to come out and leave the house; that generally this was before 9 o'clock, although sometimes they did not leave till a late hour of the night; that in most of the instances he observed that it was the same person, though upon some occasions he had known other men to visit the chamber occupied by the defendant; that he knew nothing further of any improper conduct on the part of the defendant, or any other person in her room; that there was no noise or disturbance of any kind. Another witness, Long, testified that he lived near the defendant on the opposite side of the street; that her husband had left her and gone to reside in South Carolina, nearly twelve months before the filing of this bill; that the defendant's husband had visited her once or twice within that time to his knowledge, and might have been there oftener without his knowledge; that the witness had never visited the defendant, and knew nothing in relation to her conduct; that at one time he heard a noise in front of the house, in which the defendant lived, which appeared to him to arise from an altercation between some persons in the street, and a Mr. Beard, who lived in the west end of the house, and who, at the time referred to, was standing at the front door refusing their admittance; that upon that occasion he neither heard nor saw anything of the defendant. A witness, Overman, testified that he lived opposite to the house in question; that he knew of no noise or disturbance of any kind, either in or about the house; (605) that, upon one occasion, on a public day, he saw some bad women standing at the upper front window in the passage between the two parts of the house, but that he neither heard nor saw the defendant upon that occasion. Another witness, Gheen, testified, that, for some time previous to February, 1844, he occupied the chamber adjacent to that of the defendant, and on the same side of the passage; that he had known several persons to visit the chamber of the defendant, upon different occasions, in the night time; and that, upon some occasions, two or three had come together; that this was generally in the early part of the night; that he never knew any woman to be in the defendant's room; that he had never heard any noise or disturbance of any kind in or about the defendant's room; but that sometimes persons had called at his door, mistaking it for that of the defendant, and to that extent he had been annoyed. Another witness was examined, who swore that he had visited the defendant at her room, but that he witnessed no improper behavior on the part of the defendant, or in her room.
The testimony being here closed on the part of the State, the counsel for the defendant moved his Honor to instruct the jury that, although the testimony were all true, no case had been made out against the defendant. His Honor refused the instruction. The defendant's counsel contended that there was no evidence of the ownership or direction of the room being in the defendant; that, though the jury might believe that the defendant indulged in occasional or even frequent acts of adultery, yet, if this were done quietly and privately, she would not therefore be guilty of keeping a bawdy house, and moved for instructions to this effect. His Honor refused the instructions as prayed for, but directed the jury, that, while one or two acts of adulterous intercourse would not render the defendant liable, yet if this had become habitual and common, extending to any and every person who might choose to visit her, she would be guilty (606) of the offense charged. The defendant's counsel submitted that there was no evidence upon which the jury could so find. His Honor refused to give this instruction, but on the contrary instructed the jury that there was evidence, of the weight of which they were to judge. The jury returned a verdict of guilty. The defendant's counsel then moved in arrest of judgment, on the ground that there was no allegation in the bill that the offense was committed in any house. The court sustained the motion, and the Solicitor for the State appealed to the Supreme Court.
The motion to quash the indictment was, in the opinion of this Court, properly refused. For, although it may not sufficiently charge the keeping of a bawdy house, yet it is good, at least, as an indictment for keeping a disorderly house; and, if it sufficiently charge any offense, it cannot be quashed; as an indictment for a disorderly house it substantially agrees with the precedents. Cro. Cir. Com., 302, 2 Chitty Crim. Law, 40. The language of the indictment is that the defendant "did keep and maintain a certain ill-governed and disorderly house, and in said house did procure and permit persons of lewd conversation and demeanor to frequent and come together and there to remain, drinking, whoring, cursing, swearing and misbehaving." Now, although the averment as to whoring may be inapt, because the indictment does not state, that the parties, of whom the whoring is predicated, were of both sexes, of lewd not impair the force of the other averments, that the defendant procured and permitted divers persons, though of but one sex, of lewd conversation to frequent and remain in her ill-governed and disorderly house, drinking, cursing, swearing and misbehaving, ad commune nocumentum. Rex v. Higginson, 2 Bur., 1232. Hence the indictment ought not to have been quashed; and the case was properly put to the jury, on the proof that might be offered of the offense thus charged.
But, as an indictment for a bawdy house, properly speaking — and in that light alone it seems to have been regarded in the Superior (607) Court — it is, we think defective. A bawdy house in defined to be a house of ill fame, kept for the resort and convenience of lewd people of both sexes. The residence of an unchaste woman — a single prostitute — does not become a bawdy house, because she may habitually admit one or many men to an 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, Rev. Stat., ch. 34, sec. 46, 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 the lewdness. 1 Hawk. P. C., ch. 74. 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, 1 Salk., 382, 2 Lord Ray, 1197. 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 therewith 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, 2 Crim. Law, 40, 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., on (608) etc., then 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 Crim. Pr. and Pl., 481, the house is not, as in Chitty, described as "a bawdy house," eo nominee, 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.
The foregoing observations have been made for the sake of a clearer understanding of the points on which the case turned on the trial before the jury. It was not pretended that the defendant's house was disorderly, as a tippling or common gaming house, or from noisy and riotous assemblies, or otherwise than as a place in which the defendant received men into her own bed. In fact, every witness disproves any noise or disturbance in the defendant's room. It is not, therefore, what is called a disorderly house, according to this evidence. Neither was it charged in the indictment, nor proved upon the trial, to be a bawdy house, in the legal sense of that term. No female of any character, chaste or lewd, had been admitted into her room, as far as appears. Some women of ill-fame had been seen, upon a public occasion, at the window of a passage, common to all the lodgers, but not invited nor entertained by the defendant. Indeed, his Honor distinctly put the defendant's guilt, as the keeper of a bawdy house, upon her own personal proposition, provided only that it was common and habitual with her, in which there was error, as we think. That is sufficient for the defendant on this occasion. We must own, though, for anything that we can discover in the testimony, there was no evidence of personal impurity in the defendant herself. There is not a word said in disparagement of the reputation for chastity of the defendant, nor derogatory to the morals of her visitors, whose ages, stations in life, condition in respect to being or not being married, or the like do not appear. All that is stated is that this female was temporarily separated from her husband, and that she lived quietly (609) and retired in hired lodgings, where she was occasionally visited in day and of evenings, by male persons, for aught we know, of the best standing. In all this, we see nothing that is not quite consistent with innocence of life; and, therefore, whatever may be the fact, we cannot but think that the jury should have been told that there was no evidence of the crime of adultery being committed by the defendant. At all events, she was not guilty of the offense of keeping a bawdy house, or a disorderly house; and, therefore, the judgment must be reversed, and a venire de novo awarded.
We notice, that, after the verdict and the refusal of the court to set it aside, the judgment was arrested on the motion of the defendant, and the case comes up on the appeal of the Solicitor for the State. But the objections, arising on the proceedings at the trial, naturally present themselves first, and the counsel for the defendant has insisted on them primarily; and as we think there was error in these proceedings, we have felt bound to take such a course as will free the defendant from the conviction, and, therefore, the question of the sufficiency of the indictment, on the motion to arrest, does not present itself to us.
PER CURIAM. Venire de novo.
Cited: S. v. Calley, 104 N.C. 859; S. v. Davis, 109 N.C. 810; S. v. Dunn, Ib., 840.
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