State v. Evans

• Decision Date: 30 June 1845
• Citation: 5 Ired. 603,27 N.C. 603
• Court: North Carolina Supreme Court
• Parties: THE STATE v. AUGUSTA A. EVANS.

5 Ired. 603

27 N.C. 603

THE STATE

v.AUGUSTA A. EVANS.

Supreme Court of North Carolina.

June Term, 1845.

If an indictment sufficiently charge any offence, though not the one intended, it cannot be quashed.

A woman cannot be indicted for keeping a bawdy house, merely because she is unchaste, lives by herself, and habitually admits one or many to an illicit cohabitation with her.

The offence of keeping a bawdy house consists in keeping a house or room, and therewith accommodating and entertaining lewd people to perpetrate acts of unchastity, meaning acts between the persons thus entertained.

Appeal from the Superior Court of Law of Rowan County, at the Spring Term 1845, his Honor Judge BAILEY, presiding.

The defendant was tried upon an indictment, which the Solicitor alleged to be an indictment for keeping a bawdy house, and which was in the following words, to wit:

+-----------------------------------------------+
                ¦“North Carolina,¦)¦     ¦Superior Court of Law,¦
                +----------------+-+-----+----------------------¦
                ¦                ¦)¦ss.  ¦                      ¦
                +----------------+-+-----+----------------------¦
                ¦Rowan County.   ¦)¦     ¦Fall Term, 1844.      ¦
                +-----------------------------------------------+
                

The jurors for the State upon their oath present, that Augusta Ann Evans, late of the said county, spinster, on the 10th day of August, 1843, and thence continually to the time of the finding of this bill, and before, in the said county of Rowan, with force and arms, unlawfully did keep and maintain a certain ill-governed and disorderly house, and in the said house then, and on the said other days there, did procure and cause and permit persons of lewd conversation and demeanor to frequent and come together, and then and on the said other days, there to remain drinking, whoring, cursing, swearing and misbehaving themselves, to the great damage and common nuisance of all the good citizens of the said State there inhabiting and living and passing, to the evil example of all others in the like case offending, and against the peace and dignity of the State.”

The counsel for the defendant moved to quash the indictment, upon the ground that there was no averment in the bill, that the persons therein referred to were both men and women. The Solicitor for the State contended, that this was implied by the word “persons” taken in connection with the other averments. The judge refused the motion. It appeared in evidence, that the defendant occupied an upper chamber in the east end of a house in the town of Salisbury, that there was a broad passage extending through the house above and below stairs, dividing the house into two parts, and that the entrance into the house from the street was by a door leading into the lower passage. A witness named Taylor testified, that he occupied the west end of the house in question with his family, renting it from the owner who was not the defendant; that on several occasions he had known persons to pass up the stairs and go into the defendant's chamber, and afterwards to come out and leave the house; that generally this was before 9 o'clock, although sometimes they did not leave till a late hour of the night; that in most of the instances he observed that it was the same person, though upon some occasions he had known other men to visit the chamber occupied by the defendant; that he knew nothing further of any improper conduct on the part of the defendant, or any other person in her room; that there was no noise or disturbance of any kind. Another witness, Long, testified that he lived near the defendant on the opposite side of the street; that her husband had left her and gone to reside in South Carolina, nearly twelve months before the filing of this bill; that the defendant's husband had visited her once or twice within that time to his knowledge, and might have been there oftener without his knowledge; that the witness had never visited the defendant, and knew nothing in relation to her conduct; that at one time he heard a noise in front of the house, in which the defendant lived, which appeared to him to arise from an altercation between some persons in the street, and a Mr. Beard, who lived in the west end of the house, and who, at the time referred to, was standing at the front door refusing their admittance; that upon that occasion, he neither heard nor saw any thing of the defendant. A witness, Overman, testified, that he lived opposite to the house in question; that he knew of no noise or disturbance of any kind, either in or about the house; that, upon one occasion, on a public day, he saw some bad women standing at the upper front window in the passage between the two parts of the house, but that he neither heard nor saw the defendant upon that occasion. Another witness, Gheen, testified, that, for some time previous to February, 1844, he occupied the chamber adjacent to that of the defendant, and on the same side of the passage; that he had known several persons to visit the chamber of the defendant, upon different occasions, in the night time; and that, upon some occasions, two or three had come together; that this was generally in the early part of the night; that he never knew any woman to be in the defendant's room; that he had never heard any noise or disturbance of any kind in or about the defendant's room; but that sometimes persons had called at his door, mistaking it for that of the defendant, and to that extent he had been annoyed. Another witness was examined, who swore that he had visited the defendant at her room, but that he witnessed no improper behavior on the part of the defendant, or in her room.

The testimony being here closed on the part of the State, the counsel for the defendant moved his Honor to instruct the jury, that, although the testimony were all true, no case had been...