OPINION.
His honor, the Circuit Judge, seems to have been in doubt ■about the sufficiency of the indictment, for he first overruled the demurrer to it, and ordered a jury to be called to try the accused, but afterwards discharged the jury, set aside the order overruling the demurrer, and caused judgment sustaining it to be entered. On what ground he held the indictment bad, we do not know, the demurrer being general, and appellees unrepresented by counsel here.
We have no special Statute making it a criminal offense to keep a common bawdy house, and providing for its punishment.
1. Keeping a, bawdy house.
A bawdy house is defined to be “a house of ill-fame, kept for the resort ana convenience of lewd people of botk sexes.” A bawdy house was of criminal cognizance at common law, upon the ground of public nuisance, endangering the peace aud morals of the people. State v. Evans, 5 Iredell, N. C., 606.
It is clearly agreed, that keeping a bawdy house is a common nuisance, as it endangers the public peace by drawing together dissolute and debauched persons, and also has an apparent tendency to corrupt the manners of both sexes by such an open profession of lewduess. And it has been adjudged that this is an offense of which a feme covert may be guilty as well as if she were sole, and that she, together with her husband, may be convicted of it. 3 Arch. Cr. Prac. and Plead. Waterman's notes, 609-87, and authorities •cited.
The common law, etc., was adopted by Statute in this •State, and crimes and misdemeanors, the punishment of which has not been provided for by Statute, arc punishable under the common law, etc., and the punishment is limited to fine and imprisonment. Gantt’s Dig. secs. 772-3, etc.
The keeping of a common bawdy house is a misdemeanor, therefore, indictable and punishable by law in this State.
In dictment for.
The indictment in this case follows the common law form used in England, except that it does not allege that the house was kept “for filthy lucre and gain," words used in the English precedent. 2 Chitty Criminal Law, 38. But we do not find in the notes that these were regarded as material.
Mr. Wharton says it is not necessary to allege that the ‘ house was kept for hiere and gain. Whart. Am. Cr. Law, vol. 3, (6th Ed.) sec. 2386.
Mr. Bishop says : “It was at one time deemed not certain, but now it is established, that, to constitute a bawdy house, there is no necessity for it to be kept for lucre. The offense consists in the public nuisance, and the form of corrupt motive is immaterial.” 1 Bishop Cr. Law, (6th Ed.) sec. 1068.
And in his work on Criminal Procedure, vol. 2 sec. 108, he says the allegation that the house was kept for lucre is unnecessary.
In The State v. Bailey 1 Foster (N. H.) 343, the indictment was for keeping a disorderly house, as a common law offense, and in the second count the words “/or his own gain and lucre,” were omitted. The court held that the keeping of a disorderly house was indictable at common law as a nuisance, and that this part of the common law was in force in New Hampshire. Justice Bell, moreover said : “We regard the omission of the allegation, that the’ respondent kept the house for gain or lucre as not material.. The substance of the offense is the keeping such a house as is a common nuisance to the community, and whether this is done for the motive of gain, or for some other object, is unimportant. In this respect we can see no difference between this case and the case of an indictment for keeping a brothel, a gaming house, or any other disorderly house. They are all indictable on the same principle, to-wit: that they are nuisances. In Jac. Law. Dict. titled Bawdy House, is a precedent of an indictment for keeping such a house in which this averrment is omitted.”
In Massachusetts keeping a house of ill-fame is punishable by Statute, and in Commonwealth v. Ashley, 2 Gray, 356, it was hold that it was not necessary to allege that it Avas kept for gain, and in Commonwealth v. Wood, 97 Mass., 225, it Avas decided that the trial court properly refused to instruct the juiy that it was necessaiy to prove the defendant kept the house for lucre and gain.
The indictment in State v. Homer, 40 Maine, 438, omitted the Avords for lucre and gain, and it Avas held sufficient.
In State v. Nixon, 18 Vermont, 71, the indictment charged that the bawdy house was kept for lucre and gain, but the trial court charged the jury that this allegation need not necessarily be proved. In the Supreme Court, Williams, C. J.,said: “The exceptions Avhich Avere taken tO’ the charge of the court, Ave think, were not well founded. The Statute does not make the keeping a house of ill-fame-an offense to depend on the motive of the person keeping it. It is immaterial whether it is kept for pecuniary profit and gain, or for other motives, equally bad and more debasing. It is most common that pecuniary profit and gain, in some way, is the governing motive. This motive may be inferred, as the evil intent is in other cases; but the prosecutor is not and cannot be bound to prove the actuating motive of the offender. The precedents of indictments for this offense, usually state, as in this case, that it was for pecuniary profit or gain. This, however, need not be proved. The charge of the court was correct in this particular.”
s^pi®ai>Material tions-
It is a rule of criminal pleading, that material allegations must be proved, and if an allegation need not be proved, it is not material.
Eeversed and remanded for further proceedings.