2. In a Prosecution for Keeping a House of ill fame, the house must be proved to be a house of ill fame by facts, and not by fame.

DICKERSON, J. The defendant is indicted for keeping a house of ill fame, resorted to for the purpose of prostitution and lewdness. The offense charged is that of a common nuisance. The language of the statute is as follows: "All places used as houses of ill fame, resorted to for lewdness or gambling, for the illegal sale or keeping of intoxicating liquors, are common nuisances." 1 Section 2 of the same chapter any person keeping or maintaining such nuisance" liable to fine or imprisonment in the county jail.

makes "

The terms "house of ill fame" and "bawdy house" are synony mous. "A bawdy house," says Bouvier, "is a house of ill fame, kept for the resort and unlawful convenience of lewd people of both sexes." So Archbold defines a bawdy house to be a house kept for the resort and convenience of lewd people of both sexes.2

The common signification of the word corresponds with its technical meaning. "A bawdy house," says Worcester, "is a house used for lewdness and prostitution, a brothel." The idea conveyed by the term "house of ill fame,' or its synonym "bawdy house," is that of a house "resorted to for the purposes of lewdness and prostitution." A "house used as a house of ill fame" is a house thus resorted to; it can not be so used unless it is thus resorted to, and if it is resorted to for such purpose, it is "a house used as a house of ill fame," in the purview of the statute, though it may not have that reputation. The phrase, "resorted to for lewdness," contained in the statute, does not qualify, enlarge or change the meaning of the preceding clause in this case; the statute, in this case, has the same meaning and application without as with that phrase.

In order to make out the offense charged in the indictment, under our statute, it is necessary to establish two things; first, that the house was used as a house of ill fame; and second, that the defendant kept it. The gist of the offense consists in the use, not in the reputation of the house. Its reputation for lewdness and prostitution may be ever so clearly established, and yet if the evidence does not show that it was in truth used for those purposes, the first element in the offense is not proved; but if that is made out, it is immaterial what the reputation of the house was or whether it had any. The reputation of the house, under our statute, makes no part of the issue. Testimony as to its reputation has no tendency to establish the issue that it was in fact used as a house of ill fame, and is inadmissible as mere hearsay evidence.

1 Rev. Stats., ch. 77, sec. 1.

2 1 Bouvier's Law Dic. h. b. ; 2 Archbold's Cr. Pr. & Pl. 1967; Bish. Cr. L. (5th ed.) 1883; McAllister v. Clarke, 33 Conn. 92.

On trial of an indictment for a nuisance, it is not admissible to show that the general reputation of the subject of the nuisance charged was that of a nuisance.1 The judge in the court below erred in admitting such evidence.

We are aware that the court in Connecticut, in Caldwell v. State, held that to support such an information, under the statute of that State, it is necessary to prove that the general reputation of the house was that of a bawdy house, and that it was such in fact. To establish the first proposition, the court in that case admitted evidence of reputation of the house, but distinctly say that such testimony would be clearly inadmissible to prove that the house was in fact a house of ill fame. We have seen that, under the phraseology of our statute, it is not necessary to prove the reputation of the house, and the case of Caldwell v. State, thus becomes authority for excluding evidence of reputation in this case. 4

3

Evidence of the reputation of the women frequenting the house, and the character of their conversation and acts in and about it is competent in such cases, as the judge ruled.5

The judge also properly overruled the defendant's plea.

6

Exceptions sustained. APPLETON, C. J., WALTON, BARROWS, VIRGIN and PETERS, JJ., concurred.

The chief justice and concurring justices appear also to have assented to this note upon the case by

PETERS, J. The house must be proved to be a house of ill fame by facts and not by fame.

NUISANCE-COMMON PROSTITUTE-ARREST IN PUBLIC STREETS.

R. v. LEVECQUE.

[30 U. C. Q. B. 509.]

In the Upper Canada Court of Queen's Bench, 1870.

A Conviction for Wandering in the public streets as a public prostitute can not be sustained when it is not proved that the woman was a public prostitute, nor that before or at the time of the arrest she was asked to give a satisfactory account of herself and did not do so.

1 2 Whart. Cr. L. sec. 2367; 3 Greenl. on Ev. (6th ed.) 186; 2 Bish. Cr. Pr. sec. 91.

2 17 Conn. 467.

3 17 Conn. 467.

42 Bish. Cr. Pr., sec. 91.

5 Com. v. Kimball, 7 Gray, 328; Com. v. Gannelt, 1 Allen, 8.

• Ware v. Ware, 8 Me. 42; Pub. L. 1868, ch. 151, sec. 6.

Harrison, Q. C., obtained a rule in Easter term last, calling on the police magistrate of Ottawa, and John Jordan, the informant, to show cause why the conviction of Victoria Levecque by the police magistrate on the information of John Jordan, should not be quashed, and the said Victoria Levecque altogether discharged from custody for or by reason of anything in the conviction or in the warrant issued thereon contained, on the ground that the conviction is not sufficient in form, and does not sufficiently state any offense within the jusisdiction of the magistrate, and does not state whether the imprisonment is with or without hard labor, and there was no evidence adduced before the magis trate to sustain the offense, if any, therein attempted to be stated; or why such other relief should not be granted.

The conviction made on the 25th of February, 1870, stated that Victoria Levecque, on the oath of John Jordan, constable, was convicted "for that she, the said Victoria Levecque, was in the night time of the 24th of February, 1870, a common prostitute wandering in the public streets of said city of Ottawa, and not giving a satisfactory account of herself, contrary to the form of the statute in such case made and provided;" and that the magistrate adjudged her for her said offense to pay a fine of $50, inclusive of costs, and also to be imprisoned in the common gaol of the county for the term of two months.

The evidence was as follows: "John Jordan sworn - Last night about nine o'clock the defendant was with a soldier in the barrackyard; he put her against the wall and took up her clothes; another soldier then struck me; she was drunk; she bears a very bad character; I heard she was a prostitute; I saw her drunk on the streets before; I only speak of her character by reputation; I never saw her prostitute herself before; I have no doubt she was there for an improper purpose."

M. C. Cameron showed cause.

WILSON, J., delivered the opinion of the court.

[Omitting a question of practice.]

The statute in question1 enacts that "all common prostitutes or night-walkers, wandering in the fields, public streets or highways, lanes or places of public meeting, or gathering of people, not giving a satisfactory account of themselves, shall be deemed vagrants," etc. This conviction is, that the applicant 66 was in the night time of the 24th of February, 1870, a common prostitute wandering in the public streets of the said city of Ottawa, and not giving a satisfactory account of herself, contrary to the statute" in the very language of the

statute.

1 32 and 33 Vict., ch. 28.

But, it is said, it should have been shown she was asked to give an account of herself, and that she did not give a satisfactory account; that it is consistent with the conviction that, though a common prostitute, she was rightly or excusably wandering on the streets, as she had the right to do, in like manner and for the like purpose as any other person; and that, although a common prostitute, and wandering in the public streets, she gave no account of herself simply because no one asked her to give it, and that she was under no necessity to give any account of herself until she was asked to do so.

No doubt a common prostitute wandering in the public streets should not be apprehended and taken to a lock-up without knowing what it is for. In the nature of things she should know, if she is taken up, what it is for. She is not to be taken at all, until she has failed to give a satisfactory account of herself.

If she is not asked what business she, a common prostitute, has wandering on the streets, or why it is she is there, she may not know whether she is taken up for murder or for robbery, or for what other offense, or whether she is taken up for an offense at all; and she can not suppose she is taken up for wandering in the streets, though she is a common prostitute, so long as she is conducting herself harmlessly and decently, and just as other people are conducting themselves.

But the question is, is it or may it not be reasonably presumed that she was asked to give an account of herself, when the conviction alleges "she did not give a satisfactory account of herself?"

It appears to me the conviction should allege that the woman was asked before she was taken, or at the time of her being taken, to give an account of herself — that is, of her wandering in the public streets, she being a common prostitute or night-walker- - and that she did not give a satisfactory account of herself.

In Lawrence v. Hedger,1 the person taken upon suspicion of felony at ten o'clock at night was interrogated as to how he came by the property.

In Rex v. Bootie,2 in an indictment for allowing a night-walker to escape who was delivered to defendant for safe keeping, it was alleged the woman, at the time of her arrest, was a loose, idle, lewd, and disorderly person, and a common street-walker, and being then and there behaving herself riotously and walking the streets there to pick up men, in breach of his majesty's peace" - showing plain misconduct and a very unsatisfactory account of herself.

In Queen v. Tooley et al.,3 Lord Holt said: "For certainly a suspicion barely conceived by the constable is not sufficient, without some act of

13 Taunt. 14.

2 Burr. 864.

3 11 Mod. 242, 248.

lewdness done." Powell, J., said: "Whenever a constable may take up any person, it must be either for an actual breach of the peace or upon good grounds of suspicion, and the cause of his suspicion must be shown because it is traversable. Therefore Gray having

taken up this woman without any just cause of suspicion, she was illegally imprisoned."

At page 248, the counsel for the prisoners, before the twelve judges, referred to Hein's Pleader,1 where there is a precedent that the constable may arrest night-walkers, in which it is set forth, "that the plaintiff was wandering in the streets at twelve at night, and the defendant being on his watch demanded of the plaintiff whither he was going, which he refused to answer, and therefore he took the plaintiff." And so it was agreed, in the principle case that it ought to have appeared the woman was a night-walker, wandering about suspiciously at an unreasonable time of the night.

That was a charge of murder, for killing a person who aided the officer in taking the woman. The facts were, that between eight and nine at night the woman was in the street between the play-house and the Rose tavern. The constable suspected her to be a disorderly person and took her into custody. The constable had before taken her up as a disorderly person, but she had not misbehaved herself in any way at the time of her being arrested.

And these facts showing no cause for arresting her, the killing was held to be no murder, but manslaughter only. The case is also reported in 2 Lord Raymond, and Holt. 3

2

In the former of these reports, it is said by the court: "The taking up of the woman was illegal, though she had been in the officer's custody before; and, if so, he did not act as a constable, but a common oppressor. The verdict don't find that she was guilty of any disorderly act when he had her in custody before; and it is not a constable's suspecting that will justify his taking up a person, but it must be just grounds of suspicion, for that is traversable." 5

The language is very much the same in Holt's report of the case. We are therefore of opinion, that the conviction should show a request made to the woman at the time of her arrest to give an account of herself, and that she did not give a satisfactory account, and that therefore the arrest was made, and we are also of the opinion that the allegation, she giving no satisfactory account, does not show that any prior demand or request had been made on her for that purpose. There are many authorities collected in Re Donelley, which show that