Wooster v. State

BRICKELL, C. J. —

The first count in the indictment charges the statutory offense of being “ a common prostitute, or the keeper of a house of prostitution,” having no honest employment, whereby the defendant could maintain herself. The second count charges the common-law offense of keeping a bawdy-house.. The two offenses are of the same nature, belong to the same class of crimes, and each is a misdemeanor. The statutory offense is punishable, on the first conviction, by fine of not less than ten, nor more than fifty dollars; and a second conviction, within six months after the first, is punishable by fine of not less than fifty dollars, nor more than one hundred dollars, to which hard labor for the county, or imprisonment in the county jail, for a term not exceeding six months, may be added. — B. 0. § 3630. The common-law offense is punishable by fine, not exceeding five hundred dollars, to which imprisonment in the county jail, or hard labor for the county, not exceeding six months, may be added. — B. C. § 3754. A demurrer was interposed to the whole indictment, because of a misjoinder of offenses; *220 and to tbe second count, because it was an insufficient statement of tbe offense. Without passing on tbe demurrer, against tbe objection of tbe defendant, tbe court, before tbe jury were impannelled, and before tbe trial bad commenced, permitted tbe solicitor to enter a nol. pros, as to tbe first count, proceeding for a conviction on tbe second count alone. It was tbe right of tbe solicitor, certainly at any time before tbe trial was commenced, whether a demurrer bad been interposed or not, with tbe consent of tbe court, to enter a nol. pros, as to either count in tbe indictmefit, thereby electing to proceed alone on tbe remaining count. — 1 Bish. Cr. Pr. §§ 443, 446; State v. Merrill, 44 N. H. 264.

2. There was, however, no misjoinder of counts. Tbe rule to which tbe counsel of appellant refers, extracted from former decisions of. this court — that two offenses, committed by tbe same person, may be included in tbe same indictment, in different counts, only when they are of tbe same general nature, and belong to the same family of crimes, and where tbe mode of trial and nature of punishment are also tbe same — obtains only in cases of felony. In such cases, no objection to tbe indictment, for a misjoinder, can be made by demurrer. A motion to tbe court, to compel an election of tbe counts on which a conviction will be sought, is tbe only right of tbe accused. — 1 Arch. Cr. Pl. & Pr. 94-5. Tbe motion will always be granted, or tbe court, of its own motion, will interfere, by quashing tbe indictment, when an attempt is made, as manifested either by tbe indictment or tbe evidence, to convict tbe accused of two or more offenses, growing out of distinct and separate transactions. Tbe court ought not and will not interpose, when tbe joinder is intended and calculated to meet tbe different aspects in which tbe evidence may present a single transaction, or a single offense. — Mayo v. State, 30 Ala. 32. This practice of compelling an election, or of quashing tbe indictment, if there was failure or refusal to elect on which count or counts a conviction would be claimed, never prevailed in reference to misdemeanors. — 1 Arch. Or. Pl. & Pr. 94-5; 1 Bish. Cr. Pr. §§ 448, 449, 452; 1 Wharton’s Am. Cr. Law, § 414; Kane v. People, 8 Wend. 203; Commonwealth v. Birdsall, 69 Penn. St. 482. It is, of consequence, a general rule of tbe common law, prevailing here in tbe absence of a statute changing it, that “ two or more misdemeanors, growing out of separate and different transactions, may, in different counts, be joined in tbe same indictment.” — 1 Bish. Cr. Pr. § 452; 1 Whart. Am. Cr. Law, § 414; 1 Arch. Cr. Pl. & Pr. 94-5; People v. Costello, 1 Denio, 90; Kane v. People, supra; Commonwealth v. Gillespie, 7 Serg. & Rawle, 469. Tbe court, in cases of such *221 joinder, should doubtless exercise great care, to protect the accused from embarrassment in bis defense. - But there is no legal objection to it. Here, the offenses were of the same nature, aná the joinder may have been necessary to meet the varying phases of the evidence. It would be difficult to affirm that the rule applicable in indictments for' felonies would have required the court to interpose, either by compelling an election, or by quashing the indictment. The two offenses are of the same nature, and are so near akin that a joinder may be necessary to the due administration of the criminal law. The case of Norvell v. State, 50 Ala. 174, is in conflict with our views, and must be overruled.

The second count, on which the trial was had, is sufficient, and was not affected by the nol. pros, as to the first.

3. The authorities are not harmonious, as to the admissibility of evidence of the reputation of the house, on an indictment for keeping a bawdy, or a disorderly house. In State v. McDowell, Dudley, S. C. 346, such evidence was held admissible. Other authorities have repudiated it. — People v. Mauch, 24 How. Pr. 276; United States v. Jourdine, 4 Cranch, Cir. Ct. 338; Commonwealth v. Stewart, 1 Serg. & Rawle, 344; Smith v. Commonwealth, 6 B. Monroe, 21. We prefer to follow the rule as stated in these latter authorities. The accusation is of a specific offense, in its nature susceptible of proof by witnesses who speak from their knowledge. The rule is, that hearsay evidence — and such is the evidence of reputation — is inadmissible to establish any specific fact, capable of direct proof by witnesses speaking from their own knowledge; and when the rule is relaxed, it is from necessity alone. — Overstreet v. State, 3 How. (Miss.) 328. The accusation is, not that the defendant kept and maintained a house which bore an evil name, but that she kept and maintained a bawdy-house, indictable, not because of its ill-fame, but because of the immoral and corrupting practices there indulged, and the evil persons there permitted to congregate for these practices. It is these practices, and the character of the persons there frequenting, and these only, which could render it a bawdy-house in the meaning of the law. If it has obtained that reputation justly, it is from these specific facts : and it seems to us in accordance with principle, and with the humanity of the criminal law, to require the evidence of these facts, and not of the reputation which, if it really and truthfully exists, is based on them. We hold, that the Circuit Court erred in admitting the evidence of the general reputation of the house. But the evidence of the general character of the inmates of the house for chastity was properly admitted. It was a fact, tending to show the *222 bouse was of tbe character imputed to it — a bawdy-house. Its sufficiency was matter for the jury, and would depend on its connection with other facts, tending to show that the house was kept and maintained for prostitution. — 2 Bish. Or. Pr. § 116.

For the error pointed out, the judgment is reversed, and the cause remanded. The appellant must remain in custody, until discharged by due course of law.