II. Letting or Selling a House for Bawdry.

§ 1090. 1. Liability as Keeper.—One can commit any crime without doing in person any part of the criminal thing. It is enough that his will contributes to the act, by whomsoever performed; 1 and in misdemeanor, to which grade our present offence belongs, one to be a principal offender need not even be present at the doing. This principle and the doctrine of attempt govern our present sub-title. Thus,

who

2. Permitting Keeping by Inmates and Lodgers. A person knowingly suffers mere lodgers or other inmates of his house to use it as a brothel, keeps, in law, however the outward fact may appear, a bawdy-house.3 Further of the

3. Form of Doctrine. This doctrine may assume different outward shapes under differing circumstances. A mere attempt to commit an offence is ordinarily, we have seen, indictable; * and a solicitation is an attempt of a particular kind. On this principle, the letting of a house for a brothel is, even before it is used, a punishable misdemeanor. Then, if the house is afterward kept for bawdry, he whose will contributed to it by letting it therefor is, within the principle just explained, indictable as keeper. Further to particularize,·

§ 1091. Attempt - Full Offence. In the chapter on Attempt,9 we saw that there are substantive offences so small, or otherwise of such a nature, as to render the mere unaccomplished endeavor to commit them not punishable. On which or some other reason, the majority of the New York Court held, contrary to authorities just cited, that a letting under which nothing is done by the lessee is not a crime; 10 though when afterward the premises are put to the evil use, the lessor and lessee may be proceeded against jointly for keeping the house."

And the Kentucky tribunal,

47 Am. D. 254; C. v. Johnson, 4 Pa. Law Jour. Rep. 398; P. v. Saunders, 29 Mich. 269, S. v. Leach, 50 Mo. 535.

7 Ante, § 1079; Stevens v. P. 67 Ill. 587; S. v. Potter, 30 Iowa, 587; Wilson v. Stewart, 3 B. & S. 913.

8 And see post, § 1091, 1093.

9 Ante, § 759, 761, 764, 767 (4), 768. 10 Brockway v. P. 2 Hill, N. Y. 558. 11 P. v. Erwin, 4 Denio, 129.

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while holding to the general doctrine, seems to favor the opinion. that the house must be actually used for bawdry.1

§ 1092. How in Principle. We have seen 2 that one is not indictable for bargaining to sell spirits where only the sale is forbidden, yet he is for procuring an obscene print with the intent to publish it. In other words, an attempt to sell intoxicating liquors contrary to a statute is not pursuable criminally, but an attempt to set up public obscenity is. Plainly, an attempt to establish a bawdy-house is of the latter class; consequently, it is indictable.

-

§ 1093. Selling House for Bawdry. The Kentucky Court seemed to regard the selling of a house for bawdry as no crime.3 But if the vendor knows the purposed use, why should it not be, at least, an attempt? It is difficult to distinguish between the sale in fee and a sale for a term of years. In both instances, the transfer carries the entire present possession.

§ 1094. 1. Neglect to eject Tenant. If unsuspectingly one lets what the lessee converts into a bawdy-house, he will in reason be punishable or not according as, assuming that the law gives him power to suppress the use, he exercises it or not. Yet perhaps there is some judicial authority, and possibly a shadow of legal reason, for requiring from him a little more of evil before holding him responsible as keeper of the house.4

2. The Owner's Agent. who lets a house for bawdry and collects the rents, incurs the same criminal liability as though himself the owner.5 And

3. A Letting for any Other Unlawful Purpose as, to become an ordinary disorderly house, or a nuisance of any other sort — is governed by the same rules as for bawdry.

§ 1094 a. Statutes in some of the States have affirmed and more or less modified the unwritten rules stated thus far in this sub-title.7

§ 1095. Late English Doctrine. In England, the doctrine of this sub-title has of late received a heavy blow, perhaps has been

1 Ross v. C. 2 B. Monr. 417. As to the failure to expel a tenant who keeps a bawdy-house, see Abrahams v. S. 4 Iowa, 541.

2 Ante, § 761.

3 Ross v. C. 2 B. Monr. 417.

4 S. v. Williams, 1 Vroom, 102. See Vason v. Augusta, 38 Ga. 542. There is an English case direct against such liabil

ity. Reg. v. Barrett, Leigh & C. 263, 268, 269. But it is open to the criticism in § 1096 of the text.

5 Lowenstein v. P. 54 Barb. 299.

6 S. v. Williams, supra; ante, § 1078 b. 7 Crofton v. S. 25 Ohio St. 249; Territory v. Stone, 2 Dak. 155; Drake v. S. 14 Neb. 535.

overturned. The owner of a house let it out in rooms to prostitutes, knowing the purposed use to be for bawdry, and directly or indirectly consenting. But he did not reside in the house, or retain the keys. He collected the rents weekly, had the power to eject the women but refused, yet received nothing of their earnings other than came from their greater ability to pay the rents. When pressed by complaints of disturbed neighbors, he sometimes endeavored to persuade his tenants to be more orderly. And a conviction was adjudged ill on the allegation that he "unlawfully did keep and maintain a certain common bawdy-house," &c. Said Pollock, C. B.: "The house was not kept by him. He had no power to admit any one whom he desired to enter the house, or to exclude any one whom he wished not to enter. In fact, he was not the keeper of the house." There was no distinct intimation that the defendant could be held under any other form of the indictment, though the learned judge said: "Whatever offence against morality or law he may have committed, he did not keep a disorderly house." Now,

"1

§ 1096. As to which. If the English judges were as little informed on the criminal law as most of those American ones who sit in the shadows of our commercial cities, this eclipse of the judicial understanding would not be remarkable. But it is not easily accounted for in them. "He had no power," it was said, "to admit any one whom he desired to enter the house, or to exclude any one whom he wished not to enter. In fact, he was not the keeper." No, he was satisfied to let the opening and shutting of the door be done by the women; while he provided the door and the rooms to which it led, smiled on and encouraged their infamy, and every week took his agreed share of the profits;

1 Reg. v. Stannard, Leigh & C. 349, 354. Perhaps the most pertinent of the cases referred to on behalf of the prose cution is Rex v. Pedly, 1 A. & E. 822. See ante, § 1090, 1091. And see, for the English doctrine on this subject, 1 Russ. Crimes, 5th Eng. ed. by Prentice, 440442. As in the latter place stated, it seems to be that if one creates a permanent nuisance on his land, · -as, by the erection of a building which is or is likely to become such, - then makes a lease of the land, he is punishable for the nuisance while in the possession of the lessee. Rex v. Pedly, supra. And see Russell v.

Shenton, 3 Q. B. 449; Rich v. Basterfield, 4 C. B. 783; Gandy v. Jubber, 5 B. & S. 78; Todd v. Flight, 9 C. B. N. s. 377. But he is not punishable where the nuisance, like the keeping of a house for bawdry, is the entire act of his lessee, whom he could restrain, but will not, unless he receives an increased rent on account of the unlawful use. Now, according to American doctrine (ante, § 1086), the motive of lucre is unimportant; consequently the question of what rent was paid, or whether or not the letting was gratuitous, could not vary the case.

only, being clearer-headed, he advised them to be more discreet in their violations of decency and law! Here, therefore, was a joint operation, where each had his several part to perform 1 in carrying out one common object, the keeping of a bawdyhouse. And it is English law, as well as American, that he whose will contributes to an act done by another is, if a felony, to be regarded as a joint doer of it when done in his presence; or if, as in this nuisance, it is misdemeanor, he is a joint doer whether present or absent.3 Thus, a woman, who has less capacity to penetrate another woman than this man had to open the door of the house, can, by joining her will to that of a man who has the capacity, commit rape. The indictment may, if the pleader chooses, set out the offence according to the legal import of the facts, instead of their outward form.5 In the same way, a man whose part of the criminal transaction does not consist in passing upon the eligibility of candidates for admission to the bawdry may, in law, keep a bawdy-house. And this is part of a wider doctrine extending through the entire law of crime. But the doctrine of the case in contemplation, carried into its full consequences, would overturn one half of our criminal law. It is impossible, therefore, that it should be accepted in the United States.

1 See ante, § 630, 632, 638, 650.

2 Ante, § 647, 648.

8 Ante, § 685, 686.

4 Ante, § 689 (2); Vol. II. § 1135. 5 Crim. Pro. I. § 332; II. § 957.

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CHAPTER LXVI.

Consult,

COMBUSTIBLE ARTICLES.

- for the indictment, Dir. & F. § 788-790; for the civil liability, Bishop Non-Con. Law, § 321, 417, 430, 456, 1029, 1030.

§ 1097. The Keeping of Gunpowder-in large quantities in . populous places, being a peril to the public safety, is indictable.1 § 1098. Dangerous. It was by a majority of the court in New York held that the mere keeping of it near the dwellings of divers citizens, and near a public street, does not fill the measure of the mischief; but to be a punishable nuisance, it must be in manner and place dangerous.2 The Tennessee Court adjudged a powder magazine, in which large quanties of gunpowder are stored, to be, when in a populous part of a city, per se a public nuisance.3

§ 1099. Kept before Houses built. - It seems to be the doctrine of an old case, following a rule in offensive trades, that if the place in which the gunpowder is kept was used for the purpose before dwelling-houses were built in the neighborhood, it is not indictable. Considering that it is a necessary article, which must be in store somewhere, perhaps this doctrine is just in modern law; yet the question should be examined in connection with related ones, the result whereof will probably be some modifications of the doctrine."

§ 1100. Statutes and Municipal By-laws, in some of the States, provide the rules on this subject.7