State v. Webber

• Decision Date: 22 December 1890
• Citation: 12 S.E. 598,107 N.C. 962
• Parties: STATE v. WEBBER.
• Court: North Carolina Supreme Court

12 S.E. 598

107 N.C. 962

STATE v. WEBBER.

Supreme Court of North Carolina

December 22, 1890

This was an indictment for violation of a city ordinance, tried on appeal from the court of the mayor of Asheville in the criminal court of Buncom be county before MOORE, J. The defendant in the court below excepted to the charge of the judge that the mayor and board of aldermen of the city of Asheville had power to pass the ordinances for a violation of which he was indicted. The charter (section 18, c. 111, Priv. Laws 1883) provided that "the aldermen, when convened shall have power to make, and provide for the execution thereof, such ordinances, by-laws, rules, and regulations for the better government of the city as they may deem necessary." And section 3802 of the Code empowers the authorities of all towns to "pass laws for abating or preventing nuisances of any kind." The ordinances upon which the indictment was founded were the following "Sec. 657. That the occupant or owner of any house or room, or part of the same, within the city of Asheville, who shall suffer or allow prostitution therein, or males and females to cohabit therein without then and there being lawfully married, shall be deemed the keeper of a house of ill fame, and be fined, on conviction, the sum of fifty dollars. Sec. 658. Circumstances from which it may reasonably be inferred that any house is inhabited or frequented by disorderly persons, or persons of notoriously bad character shall be sufficient to establish that such house is a disorderly house or house of ill fame. Sec. 659. Any person or persons being the owner or owners, occupant or occupants of any house of ill fame, and shall continue the same, or allow the same to be continued, for two days after being so adjudged, shall, on conviction thereof, be fined fifty dollars, and the chief of police shall close up and guard such house or houses, and keep the inmates within the same, until a warrant or warrants can be procured for the arrest of the owner or owners, occupant or occupants." The defendant excepted to the refusal of the court to instruct the jury upon the testimony that the defendant was not guilty.

V. S. Lusk, for appellant.

The Attorney General, for the State.

AVERY J., (after stating the facts as above.)

In State v. Calley, 104 N.C. 858, 10 S.E. Rep. 455, it was held that, in order to prove the charge of keeping a bawdy-house or house of ill fame, it must be shown that it was a common resort of people of both sexes for the purpose of prostitution, and that it was not sufficient to prove acts of illicit intercourse on the part of the occupants without showing also that it was kept for the convenience of people who visited it to indulge in lewdness. The aldermen were not authorized, by virtue of the power given them by the legislature to "abate or prevent nuisances," or to pass "such ordinances, bylaws, rules, and regulation for the better government of the city as they deemed necessary," to enact a law declaring that not only suffering or allowing prostitution, but permitting single acts of illicit sexual intercourse in a house or room, should constitute the owner or occupant of the room or house the keeper of a house of ill fame. To lay the foundation for suppressing, they first declare (in section 657) that a bawdy-house which the law declares is not one. In the next section (658) they assume, without warrant, the right to enact a rule of evidence, and that section, whether in consonance with or repugnant to the established rules of testimony, is void. Competent testimony would be admissible on the trial of a properly constituted case, under the general law of evidence; not by reason of the passage of a by law without authority. But it is scarcely necessary to say that circumstances which justify the reasonable inference that a house is either "inhabited or frequented by disorderly persons, or...