State v. Hull

• Decision Date: 18 February 1893
• Citation: 26 A. 191,18 R.I. 207
• Parties: STATE v. HULL.
• Court: Rhode Island Supreme Court

26 A. 191

18 R.I. 207

STATE

v. HULL.

Supreme Court of Rhode Island.

Feb. 18, 1893.

Clara Hull was convicted of keeping a house of ill fame, and petitions for a new trial. Petition granted.

Robert W. Burbank, Atty. Gen., for the State.

Charles H. Page and Franklin P. Owen, for defendant.

TILLINGHAST, J. The defendant, who was found gulity in the court of common pleas, at the September term, 1891, of keeping and maintaining a common nuisance, to wit, a house of ill fame, in the city of Providence, now petitions this court to grant her a new trial on the grounds-First, that the court below erred in admitting testimony relating to the reputation of the defendant; and, second, that certain remarks made to the jury by the attorney general, in his argument, were improper, and prejudicial to the rights of the defendant.

The attorney general was permitted by the court, against the objection of the defendant's counsel, to ask Thomas D. Tyler, a witness called in behalf of the state, the following question, namely: "What is the reputation of Clara Hull?" Said Clara Hull was the defendant in said case. George R. Waterman, another witness called in behalf of the state, was asked the following question, viz.: "Do you know what is Clara Hull's reputation for chastity?" Several other witnesses called by the attorney general were each asked the question, against the defendant's objection, "What is the reputation of Clara Hull?" No testimony was offered at the trial in behalf of the defendant. The attorney general contends that, under an indictment for keeping and maintaining a house of ill fame, evidence of the character of the defendant for chastity, as well as that of the inmates of such house, and of those who frequent the same, is admissible. We do not assent to this proposition. It is a fundamental principle of the criminal law that the character of a defendant cannot be impeached or attacked by the state unless he puts his character in issue, either by becoming a witness in his own behalf, or by offering evidence in support of his character, (State v. Waldron, 16 R. I. 191, 195, 14 Atl. Rep. 847; Slate v. Ellwood, 17 R. I. 763, 24 Atl. Rep. 782; State v. Creson, 38 Mo. 372; State v. Lapage, 57 N. H. 245, 290; Young v. Com., 6 Bush, 312, 316; Reg. v. Rowton, 10 Cox, dim. Cas. 25, 30; Greenl. Ev. [13th Ed.] §§ 25, 26, and cases cited,) excepting that, in those cases where the defendant's character is put in issue by the prosecution, then the prosecutor may examine as to particular facts; for it is impossible, without it, to prove the charge, (1 Chit. Crim. Law, 574. 575; People v. White, 14 Wend. 111, 114; Whart. Crim. Ev. 18th Ed.] § 64, and cases cited in note 6.) See, also, Knight v. State, 70 Ind. 375, 380; Allen v State, 15 Tex. App. 320, 323; Morrison v. State, 76 Ind. 335. The case before us is not one which comes within the exception just mentioned, as would that of one charged with being a "notorious thief," (World v. State, 50 Md. 49,) or of being "guilty of notorious adultery," under a statute making such an offense indictable, (People v. Gates, 46 Cal. 52; Whart. Crim. Law, § 1747.) The defendant is charged with keeping a house of ill fame, under the provisions of Pub. St. R. I. c. 80, § 1, and we fail to see that her individual character is thereby put in issue, any more than it would have been had she been indicted under the same section for keeping and maintaining a grog shop or tippling shop. And, under an indictment for the last-named offense, we have never known of evidence being admitted as to the character of the defendant, unless he voluntarily put his character in issue. That the "ill fame" or bad reputation of the house may be put in evidence in a case like the one before us, as may also the had reputation of the inmates, and of those who frequent the place, there seems to be no doubt. Com. v. Gannett, 1 Allen, 7; Com. v. Kimball, 7 Gray. 328. 330; State v. Boardman, 64 Me. 523; State v. Lyon, 39 Iowa, 379; McCain v. State, 57 Ga. 390; Beard v. State, (Md.) 17 Atl. Rep. 1044; State v. Towler, 13 R. I. 661, 665; Com. v. Clark, 145 Mass. 251, 255, 13 N. E. Rep. 888; Whart. Crim. Ev. § 261, and cases cited. But to go beyond this, and admit evidence of the character of the person on trial for the keeping of such a house, is, it seems to us, clearly violative of the defendant's rights. In State v. Hand, 7 Iowa, 411 which was an indictment for keeping a house of ill fame resorted to for the purpose of prostitution and lewdness, the court in which the case was originally tried instructed the jury "that it was not necessary for the state to prove particular facts of lewdness or prostitution. Common reputation as to the character of the defendant, and of the house which he kept, is admissible to prove the crime." The defendant was found guilty, and, in reversing the judgment, the supreme court said: "The indictment is against the keeper, and not against the house as a nuisance. To convict, the house must be shown to be a house of ill fame, resorted to for the purpose named, and that defendant was the keeper of it. Particular acts of lewdness or prostitution need not be proved. The counsel for the defendant admit this much, and also that the character of the house may be fixed or shown by reputation or rumor. The objection is that the defendant cannot be made liable as the keeper of such a house by evidence of common reputation as to his character, and this objection we believe to be well taken. The bad character of the prisoner is entirely immaterial, in the first instance, in determining whether he was the keeper of the house; and that he was the keeper must be shown, in order to convict. If the charge was against the house, then its fame—ill fame—might be shown by proving, among other things, the character of the persons—the defendant, among others —resorting therefrom time to time. * * * Common reputation as to his character, however, is quite a different thing, and is not admissible to prove the crime here charged." In Camel v. State,21 Tex. App. 357,17 S. W....