Commonwealth v. Harrington

Parker C. J.

said, in substance, that the Court were of opinion that there was nothing in the first objection to the conviction, namely, that the lease was not proved to have been made on the day alleged in the indictment.1 Time does not enter into the constitution of the offence, and this case differs therefore from an indictment for usury, where it is necessary to net forth the time of making the usurious contract.

The principal objection however was, that the facts alleged do not constitute an indictable offence. It is found that the defendant let his house to a woman of ill fame, knowing her to be such, with the intent that it should be used for the purposes of prostitution, and that it was so used. There is no statute against such an offence, and the question then is, whether it is indictable at common law. It has been compared to cheating on false pretences, which was not indictable at common law, and which has been made so by a statute. But the cases are different, inasmuch as cheating acts only upon the individual defrauded ; whereas this offence is of a public nature, and obviously injurious to the public morals. The real question is, whether exciting, encouraging, and aiding one to commit a misdemeanor, is not of itself a misdemeanor. And we find that it has been held so to be, in the case of The King v. Phillips, 6 East, 464, in which it was decided, that an endeavour to provoke another to commit the misdemeanor of sending a challenge to fight, is itself a misdemeanor; it being the object of the law to prevent the commission of offences On this ground we think the indictment is sustainable. In Rex v. Scofield, Cald. 397, it was held that the intent may make an act, innocent in itself, criminal. To apply this principle to the present case. The letting of a house is in itself an innocent act, but the defendant let his house for the purposes of prostitution, and he knew that it was used accordingly. Now keeping a bawdy-house was an offence at common law,1 and letting a house for such purpose must therefore be a misdemeanor.

A case has been cited, in which a party was allowed, in a civil action, to recover a compensation for washing clothes for the defendant, although the plaintiff knew that the defendant was a prostitute, and that the clothes were used for the purposes of allurement. But this indictment goes further. It alleges, not only that the defendant knew that his house would be put to an unlawful use, but that he let it for that very purpose. And there is a case in 1 Esp. R. 13, (Girardy v. Richardson,) in which Lord Kenyon held that a party letting his house for such a purpose is not enlitled to recover rent 2

The King v. Higgins, 2 East, 5, is a strong case to show that the common law will, proprio vigore, punish in a case like t.ne one before us. There a man solicited a servant to steal his master’s goods, and it was held a misdemeanor to solicit a person to commit a crime.3

It being found here that the defendant’s house was let to be used for an unlawful purpose, and that his gain was founded upon such use of it, the Court do not think a statute necessary to make his offence indictable. The only case which looks to the contrary is the one in 2 Ld. Raym. 1197, where an indictment against a person for being a bawd was held ill, that being a spiritual offence. The reason does not hold here, as we have no spiritual court, and it does not appear that a person may not here be indicted for being a bawd.

Though we had strong doubts in this case, from the argument of Mr. Dunlap and from the circumstance that no case has been found of an indictment for this offence in England, we have nevertheless come to the conclusion, that there is no objection to this indictment on the ground of variance, and that the facts set forth constitute an indictable offence.

Defendant adjudged to pay afine, with costs of prosecution.

1 See Treharne’s Case, 1 Moody, 298; State v. Haney, 1 Hawks, 460; Jacobs v. Commonwealth, 5 Serg. & Rawle, 316; United Stales v. Stevens, 4 Wash. C C. R. 547.

1 Rex v. Higginson, 2 Burr. 1232; Rex v. Rogier, 1 Barn & Cressw. 272 Hunter v. Commonwealth, 2 Serg. & Rawle, 298; Commonwealth v. Stewart 1 Serg. & Rawle, 342; Darling v. Hubbell, 9 Connect. R. 350.

2 Lloyd v. Johnson, 1 Bos. & Pul. 340 ; Dyett v Pendleton. 8 Cowen. 737

3 So procuring, or endeavouring to procure, the seduction of a girl, seems indictable. 3 St. Tri. 519. So endeavouring to lead a girl into prostitution. Rex v. Delaval, 3 Burr. 1438. The mere solicitation of chastity is not indictable. Hawk. P. C. bk. 1. 74, § 1. See contrd., however, in The State v. Avery, 7 Connect. R. 267