Beard v. State
| Decision Date | 12 June 1889 |
| Parties | BEARD v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from criminal court of Baltimore city; C. E. PHELPS, Judge.
Argued before ALVEY, C.J., MILLER, IRVING, STONE, BRYAN, and MCSHERRY, JJ.
R Stockett Matthews, for appellant.
Wm. Pinckney Whyte, Atty. Gen., and Chas. G Kerr, State's Atty., for the State.
The traverser in this case was indicted for keeping a disorderly house, and, upon trial by a jury, was convicted of the offense. The indictment consists of a single count. It charges that the traverser unlawfully and willfully did keep and maintain "a certain common, ill-governed, and disorderly house there situate; and in the said house, for his own lucre and gain, certain persons of evil name and fame, and of dishonest conversation, to frequent and come together," etc., "unlawfully and willfully did cause and procure; and the said persons in the said house, at unlawful times, as well in the night as in the day then," etc., "to be and remain, drinking, tippling, cursing, swearing, quarreling, and otherwise misbehaving themselves, unlawfully and willfully did permit," etc.,--"to the great damage and common nuisance of all the liege inhabitants of the state there inhabiting," etc. The indictment is in the ordinary common-law form, and accurately describes the offense with some unnecessary degree of particularity. Rex v. Higginson, 2 Burrows, 1232; 2 Chit. Crim. Law, 673. The offense is that of a common nuisance, and it is necessary that the indictment should contain facts to show that a common nuisance has been created or permitted. This is done by allegation of such facts as show that the traverser maintains, promotes, or continues what is noisome and offensive, or annoying and vexatious, or plainly hurtful to the public, or is a public outrage against common decency or common morality, or which tends plainly and directly to the corruption of the morals, honesty, and good habits of the people; the same being without authority or justification of law. 3 Greenl. Ev. § 184, and the authorities there cited. Such being the general principle upon the subject, it is in the light of and with reference to those principles that the questions raised in this case must be decided.
There were three bills of exceptions taken by the traverser. The first and second exceptions present questions as to the admissibility of evidence. These questions are whether it was competent to the prosecution to prove by witnesses the general reputation or character of the women for lewdness who frequented the house kept by the traverser, and to prove that such women frequented the house in company with men; and whether it was competent to the prosecution to prove by witnesses specific acts of lewdness by some of the women who resorted to the traverser's house, as showing what their habit and vocation really was, though such acts of lewdness did not occur on the premises of the traverser. We can perceive no possible objection to the admissibility of such evidence. Evidence of the general reputation of the house was inadmissible, but the general reputation of those who frequented it was admissible for the purpose of characterizing the house and showing the object of their visit. Henson v. State, 62 Md. 233, 235; Herzinger v State, ante, 81. And as the object of the inquiry was to show the disreputable and degraded character of the women who found admission to the house of the traverser, it was unquestionably competent to show it either by proof of general reputation, or by proof of particular acts of lewdness, to the knowledge of witnesses, and it could make no difference where such acts occurred. We are therefore of opinion that the court below was clearly right in allowing all the facts and circumstances stated in these exceptions to go to the jury to be considered by them. But all possible objection to the evidence excepted to, if there could have been a question in regard to it, would seem to have been entirely removed by the testimony introduced by the traverser himself in the subsequent process of the trial. He proved by his own witnesses that the women who frequented his house were street-walkers; that their general reputation was bad; and that some of them the witness had met in houses of prostitution. With this evidence before the jury, introduced by the traverser himself, it is not perceived upon what ground he could ask the reversal of the rulings upon the evidence offered by the state, to which he excepted.
We come now to the third exception, and the questions presented by that exception are whether it would be competent to the judge presiding at the trial of a criminal case to give an advisory instruction to the jury, when requested so to do, and, if it be competent so to instruct, whether the instruction given in this case was correct or not. These questions have been argued by counsel with much zeal and ability, and doubtless they are of great importance in the correct and faithful administration of the criminal law of the state. It appears that, after the case had been fully argued to the jury by counsel, the jury retired to consider of their verdict, and after being out many hours, they were brought into court and questioned as to whether they had agreed. They stated, through their foreman, that they had not agreed upon a verdict, and there there was no likelihood of their being able to agree. Whereupon one of the jurors suggested that he thought it probable that a verdict could be had, if the jury were instructed as to the law governing the case. To this the judge replied that he would instruct the jury, if they unanimously requested him to do so; and directed the foreman to ascertain whether it was the wish of all the jurors that they should be instructed. The foreman, after consulting the panel, announced that the jury were unanimous in...
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