thereto, or other similar circumstances, showing that the public was affected thereby. "The indictment for a nuisance, as for every other offense, must set out so much of fact as to make the criminal nature of what is charged against the defendant appear. Thus, where a thing is not a nuisance in itself, but becomes so only by reason of particular circumstances, this special matter in other words, these circumstances must be shown, else there is no crime laid against the defendant. 1 The indictment, it is true, alleges that it was "to the great damage and common nuisance of all the citizens of the State of Indiana;" but this conclusion will not supply the omitted facts. "There is no power in a conclusion of this sort to supply any defect in the main body of the allegation." 2 Wharton says: "An allegation in an indictment that certain facts were 'to the common nuisance of all the good citizens of the State,' will not make a good indictment for a common nuisance unless these facts be of such a nature as may justify that conclusion as one of law as well as of fact." 3 There are some other questions in the case which are ably discussed by the counsel for appellant, such as the necessity of a statutory description of the offense of a nuisance, and whether any such description embraces such facts as are charged in this indictment, but we pass them over as not being essential to the decision of the cause. We hold the indictment bad, for the reason, if for no other, that it does not aver any facts showing that the public was in any manner affected by the house which the appellant was charged with keeping. The judgment below is reversed and the cause remanded, with instructions to the court below to quash the indictment. BAWDY-HOUSE-PROOF OF REPUTATION OF HOUSE INSUFFICIENT. HENSON v. STATE. [19 Cent. L. J. 230.] In the Court of Appeals of Maryland, 1884. Upon the trial of an indictment for keeping a bawdy-house, evidence of the general reputation of the house is incompetent to prove the charge. L. Hockheimer, T. C. Ruddell, E. R. Davis, for plaintiff in error. Attorney-General Roberts and E. H. Gans, for defendant in error. 1 2 Bish. Cr. Pr., sec. 813. 22 Bish. Cr. Pr., sec. 812. 3 Whart. Cr. L., sec. 2362. MILLER, J., delivered the opinion of the court. The indictment against the appellant contains two courts. The first with the usual appropriate averments in such cases, charges that on the 1st of April, 1883, and on other divers days, between that day and the taking of the inquisition, he kept and maintained "a certain common bawdy-house." And the second charges him in the same manner with having kept during the same period "a certain common ill-governed and disorderly house." At the trial upon the pleas of not guilty, the State, to maintain the issue on its part, proved and gave in evidence that the character of the house specified in the indictment, in the community in which it was situated, was that of a common bawdy-house, or house of ill fame, during the time mentioned in the indictment. The traverser objected to the admission of this testimony, but the court overruled the objection and allowed the evidence to go to the jury. To this ruling the trav erser, by his counsel, excepted, and the jury having rendered a verdict of guilty, he has appealed. The question is thus distinctly and sharply presented whether under the first count in this indictment, evidence that the character of the house in the community in which it was situated, was that of a common bawdy-house or house of ill fame, is admissible as tending to prove that the traverser was guilty of the crime which that count charges him with. Counsel on both sides have, with commendable diligence, collected in their briefs all the authorities bearing upon the subject and they certainly present much conflict and diversity of judicial opinion and decis ion. They consist altogether of cases decided by the courts in this country and of the conclusions drawn therefrom by our own American text-writers. No English decision is referred to and we are not aware that the question has ever been decided by an English court; and in considering the question as it arises in this State in this case, it must be remembered that the indictment is for a common-law offense, there being no statute in Maryland as there is in many other States upon the subject of bawdy-houses. At common law a bawdy-house" or "house of ill fame" in the popular sense of the terms, is a species of disordery house, and is indictable as a nuisance.1 Hence this indictment charges that the acts and conduct specified and set out therein are "to the great damage and common nuisance of all the liege inhabitants of said State there inhabiting, residing and passing." The offense does not consist in keeping a house reputed to be a brothel or bawdy-house, but in keeping one that is actually such. In the States which have statutes upon the subject the decisions turn 1 3 Greenl. Ev., sec. 184; Whart. Cr. L., sec. 2392. in a great measure upon the construction and particular language of those statutes and, of course, to that extent can have little or no application to the question as it is presented in this case. In others a distinction is drawn between the terms "bawdy-house" and "house of ill fame" and they hold that where the latter terms are employed they are to be taken in their strict etymological sense, and that they put directly in issue the fame or reputation of the house itself; and hence it is both permissible and necessary to prove that reputation in the only way in which it can be proved. Others again ignore this distinction and hold the terms to be synonymous. In speaking of all these authorities Mr. Bishop, after stating the proposition in which they all agree (and to which we assent), that it is competent in all such cases to prove by reputation the character for lewdness of the inmates of the house and of those who frequent and visit it, though such evidence pertains in a certain sense to hearsay says: "Some carry this doctrine a step further and accept the reputation of the house for bawdy as competent evidence, prima facie, that it is a bawdy-house. Others, and probably the majority, reject the evidence in accordance with the humane principle, that a man shall not be condemned for what his neighbors say of him." And in our opinion a majority of the best considered decisions do hold, and upon correct principles, that such evidence is not admissible in cases like this at common law. Thus in Caldwell v. State, 2 Storrs, J., speaking for the court in an extremely well reasoned opinion, after holding that upon the proper construction of the Connecticut statute, under which the prosecution was had, it was necessary for the prosecution to prove in the first place, the general reputation of the house and in the next, its actual character as a brothel, and that such reputation of the house could be proved, like any other fact, by the testimony of witnesses having knowledge of its existence, and in the same manner as the reputation of a person for truth or any other quality is proved, distinctly says: "Testimony as to the reputation of the house would be clearly inadmissible for the purpose of proving that it was in truth a brothel, and such testimony, if offered for that purpose, would be obnoxious to the objection that it is a mere hearsay." So in the more recent case of State v. Boardman,3 where the statute among other things declared that "all places used as houses of ill fame, resorted to for the purpose of lewdness or gambling are common nuisances" and therefore in this respect, merely re-enacted the common law, a party was indicted for keeping a house of ill fame, and the question was distinctly presented whether evidence of the reputation of the house as being a bawdy-house was admissible. The court, after holding that the offense charged was that of a common nuisance, that the terms 'house of ill fame' and 'bawdy house' are synonymous, and that the gist of the offense consists in the use and not in the reputation of the house, decided that the testimony was inadmissible, because it was mere hearsay evidence and that on trial of an indictment for a nuisance it is not admissible to show that the general reputation of the subject of the nuisance was that of a nuisance. The judgment in that case was reversed because of the error in admitting such evidence and all the judges concurred in the curt remark of note of Judge Peters, that the house must be proved to be a house of ill fame by facts and not by fame. And in the still more recent case of Toney v. State,1 it was held that under an indictment for keeping a bawdy-house, evidence of the general reputation of the inmates of the house, but not of the house itself, is admissible for the prosecution. A similar ruling was made in State v. Lyon, where the indictment was for "leasing a house for the purposes of prostitution and lewdness.” In the District of Columbia where the common law on this subject prevailed, two cases arose directly involving the admissibility of such evidence. The first was that of United States v. Gray,3 (decided in 1826) where the testimony was admitted (the Chief Judge Cranch, doubting). But this decision was overruled by the second and subsequent case of United States v. Jourdaine,4 (decided in 1833) in which Thurston, J., is reported to have changed his opinion since the case of United States v. Gray; and a majority of the court held the evidence inadmissible, thus setting the law for that court upon this question, for the only point decided in United States v. Stevens,5 (which has sometimes been referred to as sustaining the admissibility of such evidence), was that the general reputation of persons who frequented the house was admissible. When the charge is simply that of "keeping a common, disorderly house," the authorities, almost without exception, exclude this species of evidence, and hold that the nuisance must be shown as an existing fact and not by evidence of reputation. These decisions all rest, as it appears to us, upon the elementary rule of evidence which excludes hearsay testimony. The common law is studiously careful to exclude such testimony, and does not allow its introduction in order to convict parties on trial for common-law offenses. We take it to be clear that a man's general bad character or 1 60 Ala. 977. 2 39 Iowa, 379. 8 2 Cranch, C. C. 675. 44 Cranch, C. C. 384. reputation can not be brought up against him when he is on trial for a specific crime, unless he first opens the way by an attempt to prove his good character; and we hold it to be generally clear that the fact that a crime has been committed can not be proved by common rumor or general repute. The decisions which hold this evidence admissible (when they are not founded on the language or interpretation of a statute, seem to rest its admissibility mainly upon the grounds of necessity, or rather the difficulty of obtaining direct evidence, because the operations of such houses are necessarily shrouded in secresy. But when it is open to the prosecution to prove the general bad character for chastity of the female inmates of the house, that it is frequented by reputed strumpets and that men are seen to visit it at all hours of the night as well as the day, we do not think there can be any very great difficulty in obtaining such direct evidence as will warrant a jury in convicting. If, however, such difficulty or necessity does in fact exist, a remedy can be easily and speedily provided by legislation changing rules of evidence for such cases. It is not the province of the courts to change or relax those rules in order to facilitate convictions in a particular class of offenses. We can not convert the common saying, "what every body says must be true," into a legal maxim, nor can we justify the introduction of such evidence upon the ground that it will do no harm, because it may very rarely occur that a place acquires the general reputation of being a bawdy-house without being one in fact. Until the Legislature intervenes and prescribes differently, the same rules of evidence must govern the trial of a party accused of this offense which govern in all other criminal trials, and which have so governed from the time when trial by jury under the common law was first instituted. For these reasons we hold there was error in the ruling excepted to, and the appellant is, therefore, entitled to a new trial. HOUSE OF ILL FAME - PROOF MUST BE OF ACTS AND NOT OF REPUTE. STATE v. Boardman. [64 Me. 523.] In the Supreme Court of Maine. 1. Under a Statute Making the Keeping of a house of ill fame resorted to for lewdness a common nuisance, "house of ill fame" means the same thing as "bawdy house." And the gist of the offense being the use of the house for lewd purposes, and not its reputation, evidence of the reputation of the house is not admissible. |