Commonwealth v. Lavonsair
| Decision Date | 05 January 1882 |
| Citation | 132 Mass. 1 |
| Parties | Commonwealth v. Lily Lavonsair |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued September 20, 1881
Hampshire. Complaint to a trial justice of Hampshire alleging that the defendant, on August 20, 1880, "and on divers other days and times between that day and the twenty-fifth day of October in the same year, at Northampton in said county, did keep and maintain a certain common nuisance, to wit, a certain house of ill fame, then and on said other days and times resorted to for the purpose of prostitution and lewdness, to the common nuisance of all the citizens of said Commonwealth there residing, inhabiting and passing, and against the peace of the Commonwealth and the form of the statute in such cases made and provided."
The record showed that the trial justice heard the matter of the complaint, adjudged the defendant guilty, and sentenced her to be committed to the reformatory prison for women for the term of one year; from which sentence she appealed to the Superior Court. In that court, she moved to quash the complaint and proceedings thereunder, on the ground that the court had no jurisdiction of the offence charged, and that the trial justice took final jurisdiction of the case and sentenced the defendant wrongfully.
Dewey J. overruled the motion; the jury returned a verdict of guilty; and the defendant alleged exceptions.
Exceptions sustained.
C. Delano, for the defendant.
C. H. Barrows, Assistant Attorney General, for the Commonwealth.
Before the enactment of the General Statutes, a keeper of a house of ill fame could be punished only under the St. of 1855, c. 405, which declared all buildings, places, or tenements used as houses of ill fame, resorted to for prostitution, lewdness, or for illegal gaming, &c., to be common nuisances, and prescribed penalties for the keepers of such nuisances, this statute having repealed by implication the Rev. Sts. c. 130, § 8, relating to houses of ill fame. The Gen. Sts. c. 87, § 6, reenacted the provision of the St. of 1855, c. 405, leaving out the words "used as houses of ill fame," and also, in c. 165, § 13, revived the repealed provision of the Rev. Sts. c. 130, § 8; so that the two provisions, enacted at the same time, are as follows so far as relates to this case: "All buildings, places, or tenements, resorted to for prostitution, lewdness," &c. "shall be deemed common nuisances," and a penalty prescribed, not exceeding imprisonment for one year. c. 87, § 6. "Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness, shall be punished" by not exceeding two years' imprisonment. c. 165, § 13.
It was said by this court in Commonwealth v. Ballou, 124 Mass. 26, that the keeper of a house of ill fame might be prosecuted under either statute. Trial justices have jurisdiction of offences under c. 87, but not of those under c. 165. In this case the trial justice took jurisdiction, and the question is whether the complaint is under c. 87 or under c. 165.
It is obvious that, under the law as stated in Commonwealth v. Ballou, every offence under c. 165 is an offence under c. 87, and can be prosecuted under that statute. It is equally obvious that the offences are not the same, and that every offence under c. 87 is not an offence under c. 165. Every "house of ill fame" is a "building, place or tenement," and therefore comes within the definition of c. 87; but every "building, place, or tenement, resorted to," &c. is not a "house of ill fame," and therefore does not come within the definition of c. 165. This chapter contains an element that is not in c. 87, that is, that the building, place or tenement resorted to for the illegal purpose shall be a house of ill fame, and this element was deemed so important by the Legislature that it increased the penalty twofold. As the offences are different, the indictment or complaint must be so framed as to show for which a defendant is prosecuted. The same indictment cannot be held to be for either or both offences. It may include both; a defendant may be convicted of either under it; but it must be so framed that he may know the full charge he is to meet, and the penalty he is exposed to if convicted of the whole charge. An indictment properly framed under c. 165 can no more be treated as under c. 87, because...
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State v. Gardner
...406,are irrelevant. So is Williams v. Poor, 65 Iowa, at 413, 21 N. W. 753, cited by appellant. We are unable to see how Commonwealth v. Lavonsair, 132 Mass. 1, and State v. Phillips, 26 N. D. 206, 144 N. W. 94, 49 L. R. A. (N. S.) 470, cited by appellant, or United States v. Cannon, 4 Utah,......
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State v. Gardner
...66, 34 So. 406, are irrelevant. So is Williams v. Poor, 65 Iowa 410, at 413, cited by appellant. We are unable to see how Commonwealth v. Lavonsair, 132 Mass. 1, State v. Phillips, (N. D.) 26 N.D. 206, 144 N.W. 94, cited by appellant, or United States v. Cannon, (Utah) 4 Utah 122, 7 P. 369,......
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Commonwealth v. Goulding
...of law, and "add nothing to the complaint which the law would not find there without them." They are therefore only formal. Commonwealth v. Lavonsair, 132 Mass. 1, 4. 1 Hawk. P. C. c. 75, §§ 4, 5. Commonwealth v. Smith, 6 Cush. 80, the acts alleged did not necessarily constitute any offence......