272 F. 235 | 4th Cir. | 1921
T. E. Blunter was tried and convicted in the District Court for the Southern District of West Virginia upon an information charging a violation of section 13 of the act of Congress approved May 18, 1917, known as the Selective Service Act (Comp St. 1918, Comp. St. Ann. Supp. 1919, § 2019b). While not stated in separate counts, it was charged that within five miles of a naval ordnance plant of the United States he received and permitted to be received for immoral purposes certain persons, both men and women, into a place operated as a hotel or rooming house, and designated as the South Charleston Hotel, in the town of South Charleston, W. Va., and also that he then and there kept and set up a house of ill fame. The evidence involves transactions so foul and lewd as to forbid its being rehearsed with circumstantial detail in this opinion. It is to be regretted that a proper consideration of the assignments of error requires even a brief recapitulation of it. There are numerous assignments of error, but they may be grouped under only a few classifications. Hunter, who was defendant in the trial court, will, for convenience, be referred to in this opinion as the defendant.
“No- person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”
It will be observed that this provision of the Constitution is limited expressly to capital or other infamous crimes. What is an infamous crime.has been the subject of considerable discussion in opinions handed down by the various courts of the country, both state and national. The dividing line has sometimes, but not always, been held to be that between felonies and misdemeanors. The word “crime” itself has been so distinguished from “misdemeanor.” In the case of Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 938, 29 L. Ed. 89, the court said:
“By the law of England, informations by the Attorney General, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender’s lands, or goods, or both. 4 Bl. Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself. The Fifth Amendment, declaring in what cases a grand jury should be necessary, and in effect affirming the rule of the common law upon the same subject, substituting only, for capital crimes or felonies, ‘a capital or otherwise infamous crime,’ manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses. * * * Within the last 15 years prosecutions by information have greatly increased, and the general current of opinion in the Circuit and District Courts has been towards sustaining them for any crime, a conviction of which would not at common law have disqualified the convict to be a witness."
“It is not necessary to prove that defendant was the owner of the house, nor is it necessary to 'show by positive testimony that he was the keeper. The jury may conclude that he was the keeper by his acts and admissions, or by proof that he acted and held himself out as such keeper.” 4 Ene. Ev. 729.
“That the owner or keeper of an alleged disorderly house had knowledge that the house was being used for purposes rendering it disorderly, may be shown by direct proof, or by circumstantial evidence.” 4 Ene. Ev. 729, 730.
Instruction No. 5 was properly refused. It was to the effect that the jury should find as a matter of fact that defendant had or exercised no control, power, or authority over that portion of the South Charleston Hotel building occupied by the woman Eskew, and that he should, therefore, not be held responsible for any act occurring therein. Whether he had or exercised such control, power, or authority was a question of fact, to be determined by the jury. It must be remembered that the defendant’s lease of the hotel covered the entire building, and that he was personally present conducting the place as its proprietor, and this charged him with the duty of exercising reasonable diligence to see that it was not conducted in violation of law. If he could have discharged himself from all obligation by showing temporary leases to other parties it would have been an easy matter each day to lease his rooms to whoever might desire them, and permit unlimited violations of the statute and then be discharged from liability by the assertion of lack of control over the premises. The charge of the court must be taken as a whole, and when so taken it w.ill be found that the law was fully and fairly stated.
‘Prooí of events occurring in the house and of its reputation prior to the time covered by the indictment is competent, if such proof is confined to the time within the period of limitation and is not within the time of a previous conviction or acquittal.” 14 Cyc. 502, citing U. S. v. Burch, 24 Fed. Cas. 1300, No. 14,683, 1 Cranch, C. C. 36; U. S. v. McCormick, 26 Fed. Cas. 1059, No. 15,661, 4 Cranch, C. C. 104.
“Having regard to the circumstances from which such a reputation arises, and the difficulty of obtaining other evidence in the ordinary way from unimpeachable witnesses, it seems unquestionable that reputation should be admitted as trustworthy and necessary evidence.” 2 AVigmore on Evidence, § 1620.
“On indictments for keeping houses of ill-fame, when such is the statutory term describing the offense, the ill fame or bad reputation of the house may he put in evidence.” 1 AVharton’s Criminal Evidence, § 261.
“AYhether reputation is admissible to prove that a house is disorderly is & question concerning which the cases are eonilieting; but the weight of aii-*242 tkority seems to be that evidence of reputation is admissible to prove the character of a house, and particular acts of lewdness or prostitution need not be proved.” 4 Enc. of Evidence, p. 725.
The reputation of the house is in issue, if the crime consists in the 111 fame or the house kept.” 1 G-reenl. on Ev. 46-49.
In the case of State v. McDowell, Dud. (S. C.) 348, the court says:
“When it is shown that their houses were notorious — that is, known to thp whole community — as common bawdyhouses, it is the same thing as if it wás proved that over the door of each house was written in the abominable law word ‘Bawdy’ ‘Within.’ ”
In the case of Putman v. State, 9 Okl. Cr. 545, 132 Pac. 920, 46 L. R. A. (N. S.) 598, Judge Furman, delivering the opinion of the court, says:
“If the reputation of those who resort to the house may be proven, why may not the reputation of the house itself be proven? If this inference can be drawn from the character of the persons who resort to such houses, why can it not be drawn from the character of the house to which they resort. * * * If a house has the general reputation of being a bawdyhouse, such reputation must be known to its keeper and can only be gained and maintained on account of the conduct of the persons who resort to it. It is inconceivable that a house kept for proper purposes, should ever gain the general reputation of being a bawdyhouse. The reputation of the house is the advertisement oi its keeper. It draws customers and is a source of revenue.”
Affirmed.