State v. Hendricks

• Citation: 39 P. 93,15 Mont. 194
• Parties: STATE v. HENDRICKS.
• Decision Date: 21 January 1895
• Court: United States State Supreme Court of Montana

39 P. 93

15 Mont. 194

STATE v. HENDRICKS.

Supreme Court of Montana

January 21, 1895

Appeal from district court, Custer county; George R. Milburn, Judge.

Fannie Hendricks, informed against as Fannie French, was convicted of keeping a house of ill fame, and judgment of fine and imprisonment entered against her. On writ of certiorari the judgment of imprisonment was stricken out. 37 P. 9. From an order denying a motion for a new trial, defendant appeals. Affirmed.

Middleton & Light, for appellant.

Henri J. Haskell, Atty. Gen., and Ella L. Knowles and C. H. Loud for the State.

HUNT J. (after stating the facts).

The errors relied on will be noticed as presented by the briefs. Defendant moved the court to require the county attorney to give her a bill of particulars; that is, "a more specific statement of facts or evidence upon which the plaintiff will rely in the trial of said cause." We think the court correctly overruled this motion. The information was sufficiently specific in its facts, and the charge was so plainly stated that the particular evidence which the state intended to produce was properly withheld from defendant until trial.

As will be observed by the information, the house is alleged to be situate on Sixth street, in the city of Miles City. On the trial, the state's witnesses swore that the street was Sixth, and was known as Sixth, but the defendant introduced a plat of Miles City, showing that the house was on North Sixth street. Granting that this was a variance, it was an immaterial one, and could not prejudice the rights of defendant.

Upon the trial, witnesses were asked as to the general reputation of the women who lived in the house,--whether they were virtuous or not. The same question was asked in relation to defendant herself. These questions were all objected to as incompetent. We are of opinion that the better reasoning sustains the ruling of the court in permitting proof of the general reputation for prostitution and lewdness of the persons, inmates of the house. It tends to prove the character of persons who resort to the place, and the intent of the keeper, and the general character of the house itself. The illicit acts which establish a woman's character as a prostitute are very difficult to prove; and of necessity, in order to place sufficient facts before a jury, from which they may draw common-sense and legitimate inferences, there are a few classes of cases, of which this is one, where, to develop truth, character may be affirmatively proved by the prosecution, and by hearsay evidence of general reputation. Com. v. Gannett, 79 Am. Dec. 693; Com. v Kimball, 7 Gray, 329; 2 Bish. Cr. Law, § 112; State v. Hull (R. I.) 26 A. 191; Whart. Cr. Ev. § 261; State v. Brunell, 29 Wis. 435; State v McDowell, Dud. (S. C.) 346; Territory v. Stone (Dak.) 4 N.W. 697; Drake v. State (Neb.) 17 N.W. 117. This view being supported by the weight of authority, it is difficult to see why the reputation of any particular inmate of the bawdy house should not be inquired into because such inquiry may involve the defendant herself. The principle of law that the character of a defendant may not be attacked by the state unless she puts her character in issue by her defense cannot be said to be violated because the evidence of her reputation is not admitted to prove that, inasmuch as the defendant is a prostitute, she is therefore a bad woman, and thus would be more likely to commit the crime charged against her, but as bearing upon a material issue in the information; that is, the character of the inmates of the house, of which she may happen to be one, and the character of the house, and the intent of the keeper. For these purposes we hold that, in cases like the one at bar, such evidence is competent and proper, particularly when limited by an instruction to the jury as to its applicability. A woman may live as the sole inmate and keeper of a bawdy house; yet, if several of the cases cited by appellant correctly state the law, although the reputation of the inmates of a bawdy house is a proper subject of investigation, still there could be no testimony offered to prove the fact that she was by reputation a prostitute, simply because she was the person charged with the offense. We think such a distinction is not well founded, and prefer to lay down the rules fixed in those cases which put the defendant keeper, if an inmate, on a plane with the others, whose characters become matters of common repute. See Sparks v. State, 59 Ala. 82, and State v. Brunell, 29 Wis. 435.

The court charged the jury, by instruction No. 11, as follows "It is competent for the state to prove by reputation the character of the house, and of the inmates, and of those who frequented the house, for the purpose of proving the character of the house kept; but whether or not the defendant was the actual keeper of said house cannot be proven by reputation. You must be satisfied by other proofs, beyond a reasonable doubt, that she was the keeper, before you can find her guilty." The use of...