131 Va. 776 | Va. | 1921
delivered the opinion of the court.
John Pope was indicted in the Corporation Court of the city of Norfolk for keeping and maintaining a disorderly house in that city, on November 23, 1920, and on divers other days within twelve months preceding that date,— that is to say, he was indicted for maintaining a common law nuisance. It is not necessary to reproduce the indictment in full. Upon the trial under this indictment, the defendant was convicted, and his punishment fixed by the jury at six months in jail, and a fine of five hundred dollars. The accused applied for and secured a writ of error to the judgment of the court. His petition assigns various errors.
Second: The court erred in amending instructions five, six and seven, prayed by the accused, and giving them as amended, and refusing to grant instruction ten, offered by the accused.
Third: In overruling the motion of the accused to set aside the verdict as contrary to the law and the evidence, and grant a new trial.
Under this head, the petition says: “These assignments of error can be argued together, since the real point in issue has a two-fold aspect.
I. Whether under the evidence the accused has been shown to have had any knowledge of any unlawful, or disorderly acts.
II. Whether evidence regarding a single occasion of disorderly acts, in the conduct of a lawful business, is sufficient under the law to justify a conviction of the offense of maintaining a common nuisance.
In support of his contentions of law, petitioner cites many precedents, and authorities from other States, alleging that he can find nothing in point in the la,w writers, and precedents of this State.
In September, 1920, in addition to his hotel license, Pope applied for and secured a dance hall license for his cabaret. On the night of November 23, 1920, J. H. Hollomon, Ne-ville Glennan, Robert B. Murray, Wm. Jenkins and Herman Thomas, the last four being members of the staff of the Virginian-Pilot, a Norfolk newspaper, visited the Chesterfield hotel and attended the cabaret performances.
These witnesses testify with almost complete unanimity as to what they saw and heard on the occasion of the above visit, differing only in respect of trivial details. The testimony of these witnesses is to the following effect:
They arrived at the Chesterfield hotel about half past twelve, and sent for John Pope, asking him if it would be all right to bring in a party of newspaper men. Pope replied that it would, but that there were some policemen in the place at the time. The party suggested that they could wait, but Pope told them to “come in if they wanted to; that the police would leave in a little while, and things would be livelier after ‘the law* left.” Later Pope denied
Two regularly employed professionals sang and danced, also a- colored man. The songs were not suggestive. Between times white persons, male and female, danced. The professionals danced the “shimmy,” or muscle dance, and were more expert than other “shimmy” dancers whom he had seen on the “stage, and in other places.” The colored fnan was described as being unusually expert in the art of shaking the various portions of the body. One of the visitors was a white girl who was under the influence of liquor, and described herself as being as drunk as-. She wore socks, and when dancing raised her skirts to exhibit her naked legs. This girl danced with another white girl for a minute or two in a disgusting fashion. The two women stood in the middle of the floor and went through motions suggestive of sexual intercourse. When the dance was concluded the girl who was intoxicated took her seat by her escort and leaned back against him, putting her feet on another chair with her dress above her knees, exhibiting her naked legs. There were seven or eight white women present, accompanied by men, and about an equal number of colored women and .men. The witness (Hollomon) states that he was at Pope’s place after midnight, about two weeks prior to the time in question, and that the dancing of the professional female dancers on that occasion was of the same character as that which took place on November 23rd. On both of the occasions described by this witness, the accused was on the premises. The other witnesses confirmed all
The witness Murray confirms Glennan’s testimony. He heard Pope’s statement that things would liven up as soon as “the law” left. He saw the dancing which has been described, and states that the “dancing of the negro women performers and of the negro man was indecent;” that he had seen similar dances on the stage, but the dances at John Pope’s place were worse, because more exaggerated. This witness states that when the expert negro male dancer was performing, he “danced close to the table where the young woman who wore socks, was seated, and in reaching distance of her shook his breast in her direction, whereupon she responded by shaking her breast at him.” Going into another part of the building, witness met John'Pope, and was asked if he was having a good time. On his answer in the affirmative, Pope said: “I am glad to hear it; I try to show my white friends a good time; we got the liveliest ■place in the country, and I’m going to keep it live unless
William Jenkins is city editor of the Virginian-Pilot, and was a member of the party on the night in question. His testimony is to the same substantial effect in all respects as that of Mr. Glennan. The last witness in chief for the Commonwealth was Herman Thomas, also a member of the staff of the Virginian-Pilot. This witness in the main saw the same things, and testified on the same lines as the other members of the party. He regarded the dancing of the paid performers “indecent.” Had seen “shimmy” dancing at other places, and on the stage, and considered it immoral. Regarded the dancing at John Pope's by the negro performers as similar in character, but more exaggerated. He saw the indecent and degrading performance by the negro dancer, and the intoxicated white girl, and said that it lasted from a half minute to a minute. He also saw the “highly suggestive and indecent” dance by the two white girls, described by the other witnesses. Witness partook of the liquor brought back by Mr. Glennan, and said that it was whiskey, and had a kick in it. Saw other people pouring something from bottles into their ginger ale, and they appeared to be “livelier” thereafter. He thought the-dancing of the professionals was “like what is called oriental or ‘hootchy-eootchy’ dancing.”
Without going into details, it may be said that the testimony of these officers gives the cabaret a clean bill of health, so far as their observation went, for the period preceding the night of November 23, 1920. Sergeant Moore states that he consulted Mr. R. B. Spindle, assistant city attorney, with reference to keeping white people-out of John Pope’s establishment, and was advised by him that he “knew of no law to exclude white people from the place, if their tastes were sufficiently degraded to make associations with negroes desirable.” This witness also stated that he had “tried particularly to discover whether any whiskey had been sold at Pope’s establishment, but had been unable to discover any evidence of sales.”
Benjamin Vick and William Morrisette were at the cabaret on the night of November 23rd, but saw nothing improper in the conduct of any one while there.
The other witnesses for the defendant, several of them being colored physicians, agree in saying that as visitors
One of the witnesses for the accused, Priscilla Crump, stated that she thought the opening of the Chesterfield had been a benefit to that part of town; that it seemed to be a nice place. On cross-examination this witness added that she knew 800 Lincoln street (that is, the-Chesterfield hotel), when it was occupied by Jennie Williams, a white woman, and run as a bawdy house, and that “she supposed her establishment was a benefit to the community.” Witness added that she had never heard any of the neighbors complain of noise or disorder from Pope’s place. In this connection it may be stated that 'the witness Jenkins testified that he did not think the “music was audible to a great distance outside of the cabaret, as the walls were thick and without windows.”
The accused testified in his own behalf, denying in toto that he conducted a disorderly house, or was aware of any acts of indecency, impropriety, or illegality on his premises. He insisted that the dances were decent, and the women performers of good character; that he had never had any complaints of impropriety against the conduct of his eaba-. ret; that he had never allowed liquor to be drunk there; that it was possible it was drunk there, as bootleggers were very active in Norfolk; that he had never given an invitation to a white person, other than the police, to visit his
Nowitzky, a police officer of Norfolk city, was put on the stand for the Commonwealth. He stated that he partici
There was evidence before the jury in addition to what has been cited, but the abridgement given is sufficient for a disposition of this case. It will be noted that none of the witnesses for the accused, save John Pope, and possibly a police officer, or two, who were present in the cabaret prior to, and for a short time after the arrival of the newspaper party, testify as to the occurrences of that night. Even the testimony of these officers and of the accused himself is negative in its character. The former saw nothing amiss while on the premises. The incidents of that particular evening, as related by the witnesses for the State, are, therefore, substantially unchallenged. It neéds no argument to establish the conclusion that much of the dancing described was indecent, degrading and prejudicial to the public morals. The evidence as to the purveying of ardent spirits on the premises is both direct and circumstantial, and convicts the accused of guilty knowledge of and participation in same. The stuff that was brought to the dance hall in coca cola, or ■ginger ale, bottles, and added to the ginger ale in the glasses of the patrons, was evidently whiskey, or some variety of ardent spirits. One or more witnesses identify it as whiskey. The comment of one young woman that “they must have put dynamite in this stuff,” and the enlivening effect upon the drinkers of this addition to the harmless
It is a noteworthy circumstance and one to the prejudice of the defendant that he introduced no witnesses to repel in direct fashion the specific statements of the witnesses for the Commonwealth. If these damaging statements were not true, then their falsity could have been established by other witnesses present on that occasion. Such witnesses were available. There were over thirty visitors, white and black, male and female, in the cabaret after Glennan and his associates arrived. In addition, there was present in the court room at the time of the trial, the floor
Under the third assignment of error, the petition says: “* * the real point at issue has only a two-fold aspect:
“I. Whether under the evidence the accused has been shown to have had any knowledge of any unlawful or disorderly acts; and
“II. Whether evidence regarding a single occasion of disorderly acts in the conduct of a lawful business is sufficient under the law to justify a conviction of the offense of maintaining a common nuisance.”
Apparently the theory of the defense is that they have established by the witnesses for the accused that prior to November 23, 1920, Pope had conducted a decent, orderly and unobjectionable dance hall, and that the conduct of the individuals on the night in question, as described by Glennan and his companions, even if taken to be true, was fortuitous and unexpected, contrary to the tenor of the cabaret entertainments, and unknown to and undesired by the proprietor. It will be conceded that if such was the case, the- defendant should be discharged. A single act of vulgarity, or indecency, by paid performers, interpolated contrary to the instructions or wishes of the owner of a house, or the unexpected indecencies of patrons on a single occasion, or in the course of a single evening, would not constitute an establishment a common nuisance. But if the
The testimony of various witnesses for the Commonwealth is that on the evening in question, the shimmy dancing of these paid performers was “indecent.” Hollomon states that these dancers were more expert than like dancers he had seen elsewhere, and that the dancing on the evening of the 23rd was of the same character as the dancing he had seen in the same cabaret on a prior occasion. Other witnesses describe as indecent the dancing which Hollomon calls “more expert” than that of like performers elsewhere, and which is described by another witness as being “more exaggerated.” Having in mind that this specific dancing of the evening of the 23rd was pronounced “indecent” by several witnesses, the jury doubtless interpreted the terms “exaggerated” and “expert,” as used by Glennan and Hollomon, to be equivalent to indecent, and concluded that the performances of “like char
In Jones v. State, 10 Okl. Cr. 79, 82, 133 Pac. 1134, an instruction was sustained by the appellate court, in which the jury was told that it was not necessary for the State to prove actual knowledge on the part of the accused of the character of his place, or of the inmates, or of those who resorted there, but such facts and circumstances may be shown as
In Commonwealth v. Gallagher, 83 Mass. (1 Allen) 593, the court said: “The evidence was sufficient to warrant the jury in convicting the defendants. A disturbance of the public peace by the assembly of noisy and dissolute persons, the illegal sale of intoxicating liquors, and other similar acts which tend to make disorder and injure public morals, and thus to create a common nuisance in a house or tenement, may be proved to have occurred in the course of a few hours (italics supplied), as well as during a number of days, a week, or a month. It is the nature of the acts done, not the length of time during which they are committed that constitutes the offense.”
Petitioner seeks to avert the application of this prece
“If a man keeps a house open to the public and there sells intoxicating liquor generally to persons who come together, and they when stimulated thereby, or otherwise, make disturbance, or commit acts of immorality, or in any matter violate public decency and decorum, the place is a disorderly house.” 1 Bish. Cr. Law, (7th ed.), sec. 1113.
Petitioner discredits this authority on the ground that it is dictum, not doctrine. Conceding this to be true, the principle announced is essentially sound, and,- if not law, should be made law.
It has been said that a conviction will be sustained on an indictment for keeping a disorderly house, upon proof of the drawing together of vicious, dissolute, or disorderly persons engaged in unlawful or immoral practices, thereby endangering the public peace, and promoting immorality. Thacker v. State, 48 Ark. 60, 2 S. W. 343.
Instruction No. Four.
“Positive proof of actual knowledge by the defendant of the acts and doings of the women he employed is not necessary, since the law requires him .to use reasonable diligence to ascertain the character of such acts and doings, and all that the State need do is to prove facts which would put a reasonable man on notice; but knowledge on the part of the defendant, either actual or constructive, is an essential element of the offense, and must be proved by the Commonwealth beyond a reasonable doubt, either by direct, or circumstantial evidence.”
*797 Instruction No. Nine.
“The court instructs the jury that before the acts complained of may be regarded by the jury as constituting a public nuisance, they must be of common and habitual occurrence, but the law fixes no definite continuance of time during which such acts must occur to meet the requirements of ‘common and habitual occurrence.’ It is sufficient to meet this requirement if they occur with such frequency, and during such substantial period of time covered by the indictment, as to constitute a continuing menace to public morals.”
It is not perceived that the instructions complained of announce incorrect principles of law, or were to the prejudice of accused. The defendant in the instant case may complain that the evidence of the State does not justify conviction under the conditions imposed by these instructions, but the principles stated are sound enough. One of the authorities cited by petitioner, to-wit, 18 Cyc., p. 1246, says: “A person to be criminally responsible for the keeping of a disorderly house must have knowledge of the disorderly conduct in, or about, the house, or of improper use to which the house is put. However, actual knowledge of the keeper is not necessary; implied or constructive knowledge is sufficient. Such knowledge need not extend to particular acts, or facts.” And on p. 1272,. Idem: “Defendant’s knowledge of the character of the house may be sufficiently shown, either by direct, or circumstantial evidence.”
Another court has said, and we agree with its pronouncement, that a defendant “cannot shut his eyes to what is going on around him, for the purpose of avoiding knowledge, and then defend on the ground of lack of knowledge.”
It is perfectly true, as stated in instruction nine in effect, that there must be continuance by repetition of improper
Instruction nine advises the jury that the “acts complained of, before they can be regarded as a public nuisance, must be of common and habitual occurrence.” But these words, “common and habitual occurrence,” have a flexible meaning, and are not to be so construed as to impose too weighty a burden upon society when seeking to deal with evils of this character. The hands of organized authority must not be tied by too great refinement of construction. A killing must be a willful, deliberate and premeditated killing, to be murder in the first degree; it must be a predetermined killing upon consideration, but this has not been construed to mean that the design to kill should have existed for a considerable duration of time. It is familiar law that such design may be formed at the moment of the commission of the act. So in cases of the character of the instant case, the continuance by repetition of indecency and immorality in the house of an owner, with his assent and connivance, necessary to make the house a disorderly house, has no fixed duration or definite time limit prescribed, provided the acts of misconduct are often enough to indicate a manner of keeping. Each case must be adjudged according to its own circumstances. Instruction number nine correctly defines for the jury the words “common and habitual occurrence,’’ and left them to de^ termine from the evidence whether the acts complained of were of “common and habitual occurrence,” as so defined.
We find no error in these instructions.
This case was submitted to a jury under sufficient instructions. They have passed upon the conflict of testimony, such as it is, and reached a conclusion adverse to the accused. There is no reason to interfere with that verdict.
The petition of the plaintiff in error states, referring to the verdict, that the “only natural and reasonable inference is that John Pope was convicted, not on the law and the evidence, but in consequence of popular hysteria induced by one of those moral upheavals which periodically occur in nearly every city. The accused in this case is a vicarious sacrifice to the gods of respectábility and reform.” This contention, repeated in different terms in other portions of the petition, has caused us to reproduce the evidence in
Affirmed.