We think that under Pub. Stat. R.I. cap. 80, § 1, it is the place or building, by whatever word described, used or resorted to in the ways there mentioned, or in some one or more of them, which is declared to be a common nuisance, and consequently that an indictment for keeping or maintaining any one place or building is not bad for duplicity, although it alleges use or resort in many or all the ways, the charge being of the maintenance of only one nuisance or the commission of only one offence in divers modes or manners. Commonwealth v.Kimball, 7 Gray, 328; State v. Plastridge, 6 R.I. 76;State v. Tracey, 12 R.I. 216. The indictment here charges in the first count that the defendant did keep and maintain "a certain common nuisance, to wit, a grog-shop and tippling-shop,
and building, place, and tenement used as a house of ill-fame, resorted to for prostitution and lewdness, and building, place, and tenement used for the illegal sale and keeping of intoxicating liquors, and for the habitual resort of intemperate, idle, dissolute, noisy, and disorderly persons." The allegation of place, in connection with different uses, occurs twice in different parts of the same count. This raises a question whether at least two places are not indicated? We think the question must be answered in the negative. The indictment charges the keeping of "a certain common nuisance," which means one nuisance, and therefore but one place, though many terms are used and some of them twice used to describe it. The defendant contends that the indictment corresponds in this respect with the statute, and that the statute creates two distinct offences. The statute, as we have seen, makes any place or building which is used or resorted to in either of the ways mentioned in it a nuisance, and it may therefore be said to create as many offences as it mentions offensive ways of use or resort. The statute, however, does not undertake to convert any single place into several places; and, therefore, since it is the place which is the nuisance, an indictment which follows the statute, using all its forms of local designation, and alleging the commission of the nuisance in all the ways, is not bad for duplicity, inasmuch as it only charges after all, with time-honored tautology, a single offence, namely, the keeping and maintaining of a place or building used or resorted to in the offensive modes alleged. We think, therefore, that the first count is good. We are inclined to think that the second count is likewise without defect. But if either count be good, neither the motion to quash nor the motion in arrest was maintainable. No allegation of evil, malicious, or corrupt intent was necessary, being implied in the act. 1 Bishop Criminal Proced. §§ 521-525. The first two exceptions are therefore overruled. We will add, that even if the indictment were chargeable with duplicity, it is questionable whether the exceptions could be sustained. See Wharton's Criminal Plead.
Prac. § 255, and cases cited.
The other exceptions relate to rulings in regard to evidence. On trial to the jury, the prosecution offered in support of the indictment
the testimony of two witnesses to show that the place complained of had the reputation of being a house of ill-fame. The testimony was admitted under exception. Subsequently, before resting, the prosecuting attorney asked leave to withdraw this testimony, and the court, granting the request, instructed the jury that it was out of the case, and that they were not to consider it or allow it to influence their verdict. To this action of the court the defendant excepted. Can these exceptions, or either of them, be sustained.
There is authority for the admissibility of the testimony at common law. State v. McDowell, Dudley S. Car. 346; State v.Hand, 7 Iowa, 411; State v. Brunell, 29 Wis. 435; Cadwell
v. State, 17 Conn. 467; United States v. Stevens, 4 Cranch C.C. 341. See, also, Commonwealth v. Gannett, 1 Allen, 7;Clementine v. State, 14 Mo. 112. But if the testimony was incompetent, the cases are numerous which hold that an error committed by the admission of such testimony is cured by its subsequent rejection or withdrawal, if the jury be clearly directed not to regard it. Tullidge v. Wade 3 Wils. 8;Commonwealth v. Shepherd, 6 Binn. 282; Unangst v.Kraemer, 8 W. Serg. 391; Minns v. State, 16 Ohio St. 221;Hamblett v. Hamblett, 6 N.H. 333; Pavey Orr v. Burch, 3 Mo. 447, 448; Beck v. Cole, 16 Wis. 95; Hawes v. Gustin,
2 Allen, 402; Smith v. Whitman, 6 Allen, 562. The ground of these decisions is that the testimony, after being rejected or withdrawn, is no longer legally before the jury, but is out of the case, and, the jury being instructed to disregard it, it is to be presumed that they follow the instruction. The defendant contends that the rule ought not to be applied in the case at bar, because the testimony was withdrawn, not as incompetent, but avowedly to remove all ground for exceptions. We think, however, that the rule does not depend on the motives which influence the withdrawal. The question is, did the withdrawal take the testimony out of the case. If it did, it is to be considered as if it had never been admitted. We think the withdrawal, being by consent of court, is to be regarded as the act of the court, and that in contemplation of law it purged the case absolutely of the testimony. The defendant insists that the testimony, though withdrawn, must inevitably have had an influence
on the jury, and that this influence must have been aggravated by the statement of the prosecuting attorney, that he had other witnesses to reputation which he withheld because of the defendant's objection. We have no doubt that juries are often influenced by extrinsic matters. We regret to say, too, that there is reason to think that lawyers sometimes do and say things for the purpose of producing an effect on the minds of a jury which is not legitimate. Such conduct may afford ground for new trial, if there is reason to suppose the jury has been influenced by it, as indeed the erroneous admission of testimony, subsequently ruled out, may afford ground for a new trial, if there is reason to think the jury has been influenced by it. But the true mode of getting a new trial on such ground is by petition addressed to the discretion of the court, and not by bill of exceptions; for we cannot presume that the jury has been influenced, and in a bill of exceptions the court exercises no discretion on matters of fact, but only grants a new trial where in point of law some material error has been committed. Unangst
v. Kraemer, 8 W. Serg. 391. The court does not get by a bill of exceptions the information which will enable it to exercise a judicial discretion. In the case at bar we are informed only in regard to what occurred in the matter of the rulings which are reported for revision. For anything that appears, the evidence against the defendant, independently of the evidence of reputation, may have been utterly overwhelming, and there may be no foundation whatever for the supposition that the jury was influenced either by the evidence of reputation or by the reprehensible remarks of the prosecuting attorney.
Exceptions overruled.