Com. v. Goodall

• Decision Date: 08 April 1896
• Citation: 43 N.E. 520,165 Mass. 588
• Parties: COMMONWEALTH v. GOODALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 588

43 N.E. 520

COMMONWEALTH v. GOODALL.

Supreme Judicial Court of Massachusetts, Bristol.

April 8, 1896

COUNSEL

A.J. Jennings, Dist. Atty., for the Commonwealth.

J.W Cummings, for defendant.

OPINION

LATHROP J.

The offense charged in the complaint is a common-law offense. The defendant concedes, in his brief, "that upon all the evidence, direct and circumstantial, the jury might have been warranted in returning a verdict of guilty," but contends that the latter part of the instruction requested should have been given, and that the court should have instructed the jury that merely resorting to the house without misconduct in it, of women whose reputation for chastity was bad, was not sufficient to warrant a conviction. We are of the opinion that the instructions given were sufficient, and that the instruction asked should not have been given. In Com. v. Cobb, 120 Mass. 356, the instructions given were held to be correct, and one of them was this: "The nuisance may consist in allowing the place to be so noisy and disorderly as to disturb the public peace and annoy the neighborhood. But it is not necessary to show any such noise, because the nuisance may consist in drawing together dissolute persons engaged in unlawful practices, thereby endangering the public peace and corrupting good morals." See, also, Com. v. Cardoze, 119 Mass. 210; Reg. v. Rice, L.R. 1 Crown Cas. 21; Thatcher v. State, 48 Ark. 60, 2 S.W. 343; Beard v. State, 71 Md. 275, 17 A. 1044; State v. Williams, 30 N.J.Law, 102. The other exceptions taken at the trial were not argued, and we regard them as waived.

Since the argument of the case, it has been suggested that the common-law offense of keeping a disorderly house can no longer be proved by evidence that the house was a bawdyhouse, unless it was disorderly otherwise than as a place resorted to for immoral practices. In support of this suggestion, we are referred to Pub.St. c. 207, § 13, which prescribes the punishment for keeping "a house of ill fame, resorted to for the purpose of prostitution or lewdness," and to Pub.St. c. 101, § 6, which provides: "All buildings, places or tenements resorted to for prostitution, lewdness or illegal gaming, or used for the illegal keeping or sale of intoxicating liquor, shall be deemed common nuisances." The provisions of Pub.St. c. 207, § 13, originated in St.1793, c. 59, § 8, and have been in the statutes, with some change of penalty, ever since. Rev.St. c. 130, § 8; St.1849, c. 84; Gen.St. c. 165, § 13. The provisions of Pub.St. c. 101, § 6, have been in force since St.1855, c. 405, § 1 (Gen.St. c. 87, § 6). The common-law offense of keeping a disorderly house may be proved in various ways,--by showing that the accused kept a common bawdyhouse, a common gaming house, or a disorderly place of entertainment. See Steph.Dig.Cr.Law, art. 179. In Com. v. McDonough, 13 Allen, 581, 584, Mr. Justice Chapman, speaking of the offense at common law, said: "Brothels and gaming houses were held to be nuisances under all circumstances, but alehouses were not, unless they became disorderly." At common law a person could be indicted for keeping a bawdyhouse, for keeping a gaming house, or for keeping a disorderly place of entertainment; or he might be indicted for keeping a disorderly house, and convicted by proof of any or all of the distinct offenses. If the common-law offense of keeping a disorderly house no longer applies to a house of ill fame, it also no longer applies to a house where illegal gaming is carried on, or to one which is disorderly, and where intoxicating liquor is sold. But we find no intimation to this effect in our Reports since the statute of 1855 was passed, over 40 years ago. On the other hand, there is much to show that it has always been the understanding of the court that the common-law offense of keeping a disorderly house still remained. Thus, in Com. v. McDonough, 13 Allen, 581, where, pending a complaint for selling intoxicating liquors, the penalty was changed by statute, which contained no saving clause as to cases pending, and it was therefore held that the defendant must be discharged, it was said by Mr. Justice Chapman: "As it is not alleged that the defendant kept a disorderly house, he cannot be held guilty of an offense at common law." Id. 585. In Com. v. Kimball, 7 Gray, 328, there were two counts in the indictment,--one, at common law, for keeping a disorderly house, and the other on St.1855, c. 405, § 1. It was said by Mr. Justice Bigelow: "There was no misjoinder of counts in the indictment. The offenses charged in the two counts, being of the same nature, might well be included in one indictment." While this remark was obiter, as the first count was abandoned by the government during the trial, it indicated what was supposed to be the law. So in Com. v. Davenport, 2 Allen, 299, there was a count at common law for keeping a disorderly house, and one under Gen.St. c. 87, § 6. The defendant was convicted on both counts. A new trial was granted on the first count, for error in the admission of certain evidence. See, also, Com. v. Cardoze, 119 Mass. 210, and Com. v. Cobb, 120 Mass. 356, for instances of prosecution being maintained at common law, which would fall within the statute. In Jennings v. Com., 17 Pick. 80, it was held, on a writ of error, that an indictment could be maintained at common law for keeping a house of ill fame, and that St.1793, c. 59, § 8, on the same subject, did not, by implication, repeal the common law. In Com. v. Rumford Chemical Works, 16 Gray, 231, it is said: "But it is never to be presumed that the legislature intended to make any innovation upon the common law further than is absolutely required upon a just interpretation of the provisions of its positive enactments. And this, it is said by Chancellor Kent, has been the language of the courts in every age. 1 Kent, Comm. (6th Ed.) 464. In the decisions of our own it has often been recognized as an established rule that a statute is not to be construed as a repeal of the common law unless the intent to alter it is clearly expressed. Com. v. Knapp, 9 Pick. 514; Melody v. Reab, 4 Mass. 473. It is a direct and necessary consequence, from this principle, that a statute may be in affirmance of the common law, adding new regulations and supplying additional remedies, but leaving in full force those which might before have been resorted to for the redress of public or private grievances."

The legislature has also, in defining the jurisdiction of inferior courts, shown that there was no intent to repeal the common-law offense by the enactment of the act relating to nuisances. Thus St.1863, c. 78, § 1, gives to police courts "concurrent jurisdiction with the superior court, of all offenses" under Gen.St. c. 87, §§ 6, 7, "and of all complaints under the common law, for the keeping and maintenance of a common, ill-governed and disorderly house." The language of Pub.St. c. 155, § 53, relating to trial justices, is the same, except that Pub.St. c. 101, §§ 6, 7, are mentioned instead of the corresponding sections in the general statutes. These provisions are also applicable to police and district courts, by Pub.St c. 154, § 11. St.1893, c. 396, § 39, which relates to police and district courts, gives to such courts jurisdiction "of all nuisances at common law; and of the offense at common law of keeping and maintaining a common, ill-governed and disorderly house." In the opinion of the majority of the court, the common-law offense of keeping a disorderly house has not been repealed by Pub.St. c. 101, § 6, or by chapter 207, § 13, although the evidence shows that the house is not disorderly, otherwise than as a place resorted to for immoral practices. Exceptions overruled.

DISSENTING

KNOWLTON J. (dissenting).

Our legislature has enacted statutes providing fully for the prosecution and punishment of the keepers of houses of ill fame. Pub.St. c. 207, § 13; Id. c. 101, § 6. I cannot agree that such offenders are still liable to prosecution and punishment, in this commonwealth, at common law. It is a familiar doctrine that, when a statute is enacted covering the whole subject of punishment for a crime there is no longer any place for the operation of the common law, under which the crime previously had been punished. The statute supersedes the former mode of proceeding that was adopted by the courts for want of a statute. Com. v. Cooley, 10 Pick. 37; Com. v. McDonough, 13 Allen, 581; Com. v. Dennis, 105 Mass. 162; Com. v. Rumford Chemical Works, 16 Gray, 231. A disorderly house, as defined by the courts, in proceedings at common law, is not a house which has certain special criminal features, caused by a particular kind of unlawful use. The keeping of such a...