Henson v. State

• Decision Date: 29 May 1884
• Citation: 62 Md. 231
• Parties: THOMAS HENSON v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

62 Md. 231

THOMAS HENSON v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

May 29, 1884

APPEAL from the Criminal Court of Baltimore.

The case is stated in the opinion of the Court.

The cause was argued before ALVEY, C.J., STONE, MILLER, ROBINSON IRVING, and BRYAN, J.

L Hochheimer, for the appellant.

Edgar H. Gans, for the appellee.

MILLER J., delivered the opinion of the Court.

The indictment against the appellant contains two counts. The first, with the usual appropriate averments in such cases charges that on the 1st of April, 1883, and on divers other days between that day and the taking of this inquisition, he kept and maintained " a certain common bawdy-house," and the second charges him, in the same manner, with having kept, during the same period, " a certain common, ill-governed and disorderly house. " At the trial, upon the plea of not guilty, the State, to maintain the issue on its part, proved and gave in evidence that the character of the house specified in the indictment, in the community in which it was situated, was that of a common bawdy-house or house of ill-fame, during the time mentioned in the indictment. The traverser objected to the admission of this testimony, but the Court overruled the objection and allowed the evidence to go to the jury. To this ruling the traverser, by his counsel, objected, and the jury having rendered a verdict of guilty, he has appealed.

The question is thus distinctly and sharply presented whether, under the first count in this indictment, evidence that the character of the house in the community in which it was situated was that of a common bawdy-house or house of ill-fame, is admissible as tending to prove that the traverser was gnilty of the crime which that count charges him with? Counsel on both sides, have, with commendable diligence, collected in their briefs all the authorities bearing upon the subject, and they certainly present much conflict and diversity of judicial opinion and decision. They consist altogether of cases decided by the Courts in this country, and of the conclusions drawn therefrom by our own American text writers. No English decision is referred to, and we are not aware that the question has ever been decided by an English Court; and in considering the question as it arises in this State and in this case it must be remembered that the indictment is for a common law offence, there being no statute in Maryland, as there is in many of the States, upon the subject of bawdy-houses. At common law a "bawdy-house," or a "house of ill-fame," in the popular sense of the terms, is a species of disorderly house, and is indictable as a nuisance. 3 Greenlf. on Ev., sec. 184; 2 Wharton's Cr. Law, sec. 2392. Hence this indictment charges that the acts and conduct specified and set out therein, are "to the great damage and common nuisance of all the liege inhabitants of said State there inhabiting, residing and passing." The offence does not consist in keeping a house reputed to be a brothel or bawdy-house, but in keeping one that is actually such.

In the States which have statutes upon the subject, the decisions turn, in a great measure, upon the construction and particular language of these statutes, and, of course, to that extent, can have little or no application to the question as it is presented in this case. In others a distinction is drawn between the terms "bawdy-house" and "house of ill-fame," and they hold that where the latter terms are employed, they are to be taken in their strict etymological sense, and that they put directly in issue the fame or reputation of the house itself, and hence that it is both permissible and necessary to prove that reputation in the only way in which it can be proved. Others again ignore this distinction and hold the terms to be synonymous.

In speaking of all these authorities Mr. Bishop, after stating the proposition in which they all agree, (and to which we assent,) that it is competent in all such cases to prove by general reputation the character for lewdness of the inmates of the house and of those who frequent and visit it though such evidence pertains in a certain sense to hearsay, says: "Some carry this doctrine a step further and accept the reputation of the house for bawdy, as competent evidence prima facie that it is a bawdy-house. Others, and probably the majority, reject the evidence, in accordance with the humane principle that a man shall not be condemned for what his neighbors say of him." 2 Bishop's Crim. Prac., secs. 112, 113. And, in our opinion, a majority of the best considered decisions, so hold, and upon correct principles, that such evidence is inadmissible in cases like this at common law. Thus in Cadwell vs. The State, 17 Conn., 467, STORRS, J., speaking for the Court, in an extremely...