Handy v. State

63 Miss. 207 | Miss. | 1885

Arnold, J.,

delivered the opinion of the court.

It was not necessary to allege in the indictment that the house was kept in a public place, city, town, or village, or on or pear any public street or highway, or that any person resided near thereto, or Was in the habit of passing thereby. According to approved forms and precedents, it was sufficient on this point to charge that the house was kept in the county in which the indictment was found. Bishop’s Directions and Forms, §§ 781 and 782; Bish. Cr. Pro., §84.

The motion for a new trial should have been sustained, because the testimony was not sufficient to convict, and the evidence in regard to the general reputation of the house was incompetent. There are some authorities which hold that evidence as to the general reputation of the house in such case is admissible, but this doctrine is not generally accepted, and we prefer to follow the authorities which reject it. 2 Bish. Cr. Pro., § 91; Wooster v. State, 55 Ala. 217; Toney v. State, 60 Ala. 97; People v. Manch, 24 How. Pr. 276; U. S. v. Jourdine, 4 Cranch Cir. Ct. 338; Com. v. Stewart, 1 Serg. & Rawle 344; Smith v. Com., 6 B. Monroe 21; Henson v. State (Md.), 19 Cent. L. J. 230.

The reasons for the exclusion of such testimony are accurately and tersely stated in the opinion of the Supreme Court of Alabama, in Wooster v. The State, supra. Judge Brickell, delivering the opinion of the court in that case, said: “ The accusation of keeping a bawdy house 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 maintained 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.”

In these reasons and conclusions we concur.

Reversed*