Cadwell v. State

17 Conn. 467 | Conn. | 1846

Stokrs, J.

The statute, on which the information in this case was founded, prohibits any person from “ keeping a house of ill fame, resorted to for the purpose of prostitution or lewdness” Stat. of 1845, c. 20. p. 22. The phrase, “ house of ill fame,” used in the first branch of this description of the offence, is often, and perhaps usually, adopted in common parlance, to denote a house which is not merely reputed to be, but which is, in fact, a brothel or bawdy-house ; and if there had been nothing added to this expression in the statute, we should probably construe it in this its more popular meaning, rather than in its strict etymological sense, which refers to reputation and general belief, and not to actual character, on the ground that the legislature more probably intended to apply it, in its popular sense, to a person who was actually guilty of the offence, than to one who is generally suspected, but may be really innocent. But this part of the description of the offence intended to be prohibited, being immediately connected with another, which requires that such house should be actually a brothel or bawdy-house, we cannot construe it according to its popular signification, without imputing to the legislature the most palpable tautology. This, as a general principle, is to be avoided; and it is, moreover, a well established rule, that statutes are to be so construed, that every word in them is, if possible, to take effect, that being according to the presumed intent of the legislature. For these reasons, we adopt the construction of this statute, which is most favourable to those who are accused under it, and which requires, that the house kept by him, should be, not only one of ill fame or reputation, and commonly believed to be a brothel, but that it should be actually one of that kind or description. It is, therefore, necessary for the prosecutor to prove, in the first place, its general reputation, and, in the next, its actual character as a brothel. It being necessary to prove this to be the general reputation of the house, that it sustained that reputation, was a fact to be proved, like any other fact, by the testimony of witnesses having knowledge of its existence. Testimony as to the reputation of the house would clearly be inadmissible, for the purpose of proving that it was in truth a brothel. Such testimony would be obnoxious to the objection that it is mere hearsay. It was, in this case, neither introduced, nor admitted, for that purpose, but only to show, that it sustained that reputation ; and it is no more objectionable for that purpose, than testimony of a similar character, which is so frequently adduced to prove the reputation of a person for truth, or any other quality. This disposes of the first objection made in the trial of this cause, to testimony as to the reputation of the house.

It is next objected, that it was not competent for the prosecutor to prove, that the house in question was reputed to be a house of ill fame, before the statute on which the information was founded took effect. The information alleges the offence to have been committed after the act went into operation. We have no doubt that testimony to show what the reputation of the house was, before the act went into effect, conduced to prove that it sustained the same reputation afterwards ; and that it was therefore admissible for that purpose. Evidence of the reputation of the house previous to a particular time, fairly conduces to show its reputation afterwards. Nor do we perceive, that the circumstance that the act went into effect after it had acquired a bad reputation, has any effect upon the relevancy of the testimony upon the question whether it sustained that reputation at a subsequent time. If the character of the evidence is such that it would ordinarily be relevant to prove the fact sought to be established, and that be a material fact, — if independent of the circumstance that the act took effect after the existence of the fact proved, an inference could be legitimately drawn as to the existence of any other or a similar fact after the act took effect, — we do not think that the evidence is made irrelevant, or that the ground of inference which it furnishes is destroyed, by the act going into operation, at any particular time. This is a question respecting a natural and probable inference of the existence of one fact from the proof of another, or rather of the existence of a fact at one time from proof of the previous existence of a similar fact. We do not perceive how the circumstance that the act took effect at a particular time, destroyed the ground to infer, that the reputation of this house was bad, subsequent to that event, from the fact that it was bad previously.

It is urged, that the admission of this testimony gives the act on which the accused is prosecuted, an ex post facto, and therefore an unconstitutional, operation. It is not liable to this objection, on the ground that any new rule of evidence is introduced on the subject, since the law took effect; because such evidence has always been admitted : nor on the ground that its admission had the effect either of making an act criminal, which was innocent at the time of its commission ; or an act which was then criminal, more severely punishable than when it was committed ; because it does not appear, that there was any claim or attempt, in this case, to convict the defendant below, on the ground that before the act took effect, his house either sustained the reputation of a brothel, or was in reality a house of that description. On the contrary, the prosecutor claimed to have proved, that the house both sustained that reputation, and was also a house of that description, after the act went into operation. The effect given to the act on the trial, was, therefore, prospective only.

The remaining question respects the admissibility of Cham-berlin’s testimony. He was offered as a witness to prove, that one Eunice Roberts, and divers other persons of lewd and dissolute character, for two years or more next previous to the time when the said act took effect, resorted to the house in question, for the purpose of prostitution and lewdness, and among others, that one Maria Alford, a lewd woman, resorted there, about two years before the trial, for the same purpose. This testimony was offered, in connexion with other testimony, by which the prosecutor claimed to have proved, that the same persons, or persons of a similar character, resorted to said house, after the passage of the act. The testimony of Chamberlin as to the said Maria Alford, was objected to, by the accused, on the ground that the fact offered to be proved respecting her, and also her death, took place before the passage of said act. It was received in connexion with the evidence with which it was thus offered, not for the purpose of proving a distinct offence against said act, bat for the purpose of showing, that those persons, who thus resorted to said house after the passage of said act, went there for the same purpose for which those mentioned by the -witness, Chamber-lin, resorted there before its passage. No stress has been laid on the fact that the said Maria died before the passage of the act; and that circumstance may, therefore, be disregarded. It has obviously no bearing on the question as to the inference to be derived from the fact that she and other persons of a similar character, resorted to said house for the purpose imputed to them. The other specific objection made to the evidence was, that the transaction testified to, took place before the passage of the act: it respected, not the character of the evidence, but the time to which it related. The question presented on this objection, is of the same nature as that which was made to evidence of the reputation of the house before the act took effect, and has been already considered ; and the answer which has been given to that objection, applies fully to the present. The passage of the act, therefore, does not affect the relevancy of the testimony of Chamberlin, if it is admissible on other grounds. The court are of opinion, that it fairly conduced to prove, in connexion with the evidence with which it was introduced, the real character of the house, and the purpose for which it was kept, after the act was passed. If a house should be fitted up, by the occupier, for the purposes of a school, and young persons should resort there, for a considerable period, for purposes of being instructed by him, would not the fact that the same persons, and those of similar character, subsequently resorted to the same building, conduce to prove, that a school was continued there t So, in the present case, we think, that the circumstance that certain persons of lewd and dissolute character had, before tlre time in question, been permitted, by the accused, habit-Rally to resort to his house, for the purpose of tarnished a legitimate ground to infer, that when it was subsequently allowed to be resorted to, by the same persons and those of a similar character, it was for the same purpose. The testimony, being relevant to prove a material fact in the case, was properly received.

The superior court is therefore advised, that the judgment complained of should be affirmed.

In this opinion the other Judges concurred.

Judgment affirmed.