Commonwealth v. Porter
| Decision Date | 05 January 1921 |
| Parties | COMMONWEALTH v. PORTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Criminal Court, Suffolk County; Hugo A. Dubuque, Judge.
Lee Porter was indicted for maintaining a nuisance under St. 1914, c. 624. Defendant's motion to quash and pleas in bar and abatement were denied and overruled, his motion at the close of evidence for a directed verdict was denied, and he excepts. Exceptions overruled.Frederick M. J. Sheenan, Asst. Dist. Atty., of Boston, for the commonwealth.
William Flaherty, of Boston, for defendant.
The defendant was indicted for maintaining a nuisance under St. 1914, c. 624, which provides that every building, part of a building, place or tenement used for prostitution, assignation or lewdness shall be deemed a nuisance, and whoever keeps or maintains such a nuisance shall be punished by fine and imprisonment. The commonwealth did not rely on the allegation of prostitution or assignation, but relied only on the part of the indictment charging the defendant with keeping and maintaining a nuisance, to wit. a certain building, part of a building, tenement and place used for lewdness for six months prior to November 1, 1918. The defendant filed a motion to quash, a plea in bar and a plea in abatement setting forth that he had been indicted in June, 1919, for the offense of being a lewd and lascivious person during the twelve months preceding, and after a trial on June 15, 1919, was acquitted; the pleas were overruled, and the motion denied. At the close of the evidence the defendant moved for a directed verdict. This motion was denied, and he excepted.
There was evidence that, in a house kept and maintained by the defendant, indecent and unnatural acts were committed by men with others of their sex; and the defendant contends that because there was no evidence of lascivious acts between men and women that the charge of lewdness is not sustained. Lewdness includes illicit sexual intercourse, and the irregular indulgence of lust whether public or private. Commonwealth v. Lambert, 12 Allen, 177, 179. The Legislature intended to punish the keeping of all places resorted to for any form of lewdness between persons of the same sex or of opposite sexes, and under the term ‘lewdness' as used in the statute the unlawful acts disclosed by the evidence were included. See Commonwealth v. Wardell, 128 Mass. 52, 35 Am. Rep. 357; Commonwealth v. Lambert, supra.
[2] The crime of being a lewd, wanton and lascivious person in speech and behavior, of which crime the defendant was acquitted, is a distinct offense and different in kind from the keeping of a house or building for an illegal purpose. The motion to quash, and the pleas, were properly overruled, and there was no error in denying the defendant's motion for a directed verdict. Commonwealth v. Brelsford, 161 Mass. 61, 64, 36 N. E. 677, and cases cited; Commonwealth v. Bubser, 14 Gray, 83.
A witness for the defense, after stating that he knew the defendant's reputation for chastity and morality and his reputation for truth and veracity, was allowed to testify that the defendant's reputation was good. On cross-examination it appeared that he had heard the defendant's reputation discussed only in the family of the witness' father-in-law, the defendant's employer, and the judge excluded the evidence. When the character of one is in issue it can be shown only by evidence of his general reputation as disclosed by the common speech of his neighbors and members of the community. Miller v. Curtis, 158 Mass. 127, 131, 32 N. E. 1039,35 Am. St. Rep. 469;F. W. Stock & Sons v. Dellapenna, 217 Mass. 503, 105 N. E. 378. All that the witness knew of the defendant's reputation was from hearing it discussed in his father-in-law's family. This was not enough to qualify him as a witness, with sufficient knowledge of the defendant's general reputation. Walker v. Moors, 122 Mass. 501, 504;Commonwealth v. Rogers, 136 Mass. 158. When the witness showed by his cross-examination that the had no knowledge of the defendant's reputation, there was no error of law...
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