I cannot agree with my Brethren in the proposition announced in the opinion on the motion for rehearing, admitting the evidence of general reputation. Previous decisions of this court and courts in this State have admitted evidence of general reputation with regard to what was at the time of the rendition of the opinion, known as "disorderly houses." The statute, at the time of the rendition of those opinions, did not have the definition given or attempted to be given by the Act of the Thirtieth Legislature, p. 246. Heretofore houses have been termed disorderly houses, as applied to what is properly and generally known in our jurisprudence as "houses of ill fame," in other words, "houses of prostitution." Of course, the house could not be a house of "ill fame," unless prostitutes inhabited or resorted to it. It took a combination of prostitutes resorting to the house and the house itself to come within the definition as heretofore given, but in reaching out and creating new offenses, the Thirtieth Legislature has undertaken to constitute a house a disorderly one in which spirituous, vinous or malt liquors are sold, or kept for sale without a license under the laws of the State to retail such liquors. It would hardly, it seems to me, be contended that evidence of general reputation of a house of "ill fame" where prostitutes resort or reside would be admitted as proof of the fact that a party kept intoxicating liquors for sale without obtaining license. It would be carrying the doctrine of general reputation as a basis for conviction of crime, to a startling conclusion or result. Because general reputation is held admissible as evidence to prove the reputation of a house of "ill fame" or "house of prostitution" does not of itself or even by innuendo suggest that another distinct offense may be placed in the same statute and *Page 70 the same rules in the respect made to apply to the new offense constituted by essentially different elements. Mr. Wigmore in his work on Evidence, says: "Whether or not the general reputation of the character of-a house is admissible where a party is charged with running a disorderly house, depends upon the wording of a statute. Where the repute of the house is an essential element of the crime charged, it is admissible, otherwise it is not." 1 Wig. 78. In McClain's work on Criminal Law, it is said, that weight of authority is that evidence of general reputation of a house is not admissible. (See McClain on Crim. Law, section 1145.) And such evidence has been held inadmissible in Boardman's case,64 Me. 523; U.S. v. Journdine, 4 Cranch, C.C. 338; Abel's case,90 Ala. 633; Wooster's case, 55 Ala. 221; Ramsey's case, 35 So. R., 325; Foley's case, 45 N.H. 466; Handy's case, 63 Miss. 208; Kenyon's case, 26 N.Y. 233; Nelson's case, 49 P. 920; Plant's case, 32 A. 237; Barker's case, 20 S.E. 776.
The statute under discussion is not worded as was the statute when the Morris case, 38 Tex. 603, and the Sylvester case,42 Tex. 496, were rendered. The offense aimed at in the statute at that time was the offense of conducting what was known as a house of "ill fame" or "ill repute." The particular part of the statute here at issue does not involve that character of the house. It sets out certain facts with reference to the selling of intoxicants without procuring license. It would hardly be contended in any court of justice that a party could be convicted under an indictment charging this particular clause of the statute, that it could be sustained by proof of general reputation. It would have to be shown in order to convict, that intoxicating liquors were kept for sale, and that the party had not procured the license for selling it. It takes these ingredients to constitute this offense, if it is one in fact under the statute. These facts could not be proved by general reputation. Usually the reputation of houses of ill fame grows out of the rule of necessity, at least so it has been always written. In this particular character of case such rule of necessity could hardly apply and would not be permitted to apply. It has been held that in adultery cases, reputation is inadmissible. See Bishop's Stat. Crim., 678. In Cronin v. State, 30 Texas Crim. App. 278, it was held error to prove the general reputation of a gambling house. Mr. Wharton lays down the rule in his work on criminal evidence, that it is never admissible, except when general reputation is a constituent of the offense. Sections 255 and 260. In cases of this character it can only be proved when there is a statute authorizing it, by its terms, even if the Legislature could dispense with proof of a crime and substitute for the proof, reputation, Wilson's case,15 R.I. 180; Kingston's case, 5 R.I. 297; Warren's case,16 R.I. 191; Eagan's case, 151 Mass. 45.
By comparing the Search and Seizure law that was passed by the same Legislature, it is seen in section 15, of that act, that provision was made that reputation might be shown, but it is not so in the statute under consideration. These are what we may term statutes in pari materia; *Page 71 they at least relate to the same general subject, and may tend somewhat to elucidate the legislative mind. In the absence of a statute, can evidence of general reputation be admissible in cases of this character? I answer, no. 2 McClain Crim. Law, section 1279. Mr. McClain says: "By some statutes the reputation of the place is admissible in determining whether it is kept as a nuisance, but aside from the statute such general reputation is not admissible.
In regard to the first question decided, overruling the motion for rehearing, I assign the above few remarks as my reasons for dissenting.