Sparks v. State , 59 Ala. 82 ( 1877 )

Per CURIAM.—

1. A motion in arrest of judgment must' be founded on matter appearing of record. Because of matter extrinsic, it is not granted.— Williamson v. Br. Bank Montgomery, 3 Ala. 504. Errors which the court may commit in the progress of the trial, in the admission or rejection of' evidence, or in instructions given or refused, or in reference to any matter, which is not necessarily shown by the record,, may be the matter of an exception, or ground of a motion, for a new trial, but not of a motion in arrest of judgment. We pass over all the grounds assigned for the arrest of judgment, except the two relating to the sufficiency of the indictment. The indictment conforms substantially to the form given by Archbold, for the common law nuisance of keeping a bawdy-house. The only material departures are, the omission to charge the locality of the house and that it was kept for lucre and gain. The allegation that the house was kept for lucre and gain, was regarded as unnecessary in the common law indictment.—2 Bish. Cr. Pr. § 108. An indictment good at common law, for a common law offence, is sufficient under our statutes. An averment of the particular parish in which the house was situate, was contained in the form of indictment at common law; and according to some authorities, the averment when made, was matter of description, which must be precisely proved. Whether it was a necessary averment, on authority, it is difficult to say. The offence is not defined by statute—it remains a common law misdemeanor—nor is the punishment particularly specified. On conviction, the only punishment is a fine, not exceeding five hundred dollars, to which imprisonment, or hard labor for the county, for a time not exceeding six months, may be added.—Code of 1876, § 4447. There occurs to us no sound reason for requiring an averment of the particular locality of the house, except as a statement of the venue of the offence. The statute dispenses with allegations of venue; requiring that on the trial it should be proved.—Code of 1876, § 4787. It is an intendment, or implication of law, that the offence stated in any indictment Avas committed in the county in which the indictment is found; a failure on the trial, to support by evidence the intendment, or implication, is as-fatal, as if the averment of venue, was positive and precise.

2. The juror Nunis was of the regular panel Avhieh was in the jury-box Avhen the cause Avas called for trial. If he was subject to challenge for cause, it is not disclosed by the bill of exceptions. A peremptory challenge came too late, after the solicitor and the defendant had each expressed satisfaction with the jury as organized. A challenge for cause, if it had been satisfactorily shown, the cause existed in fact and was not sooner discovered, nor improperly withheld, would not have been too late. — Smith v. State, MSS.

3. Accompanied by evidence, (which appears to have been given) that the defendant held • herself out, as haying control over, managing and keeping the house, and that it was frequented by persons of dissolute habits, and that the reputation of its inmates for chastity was bad, it was permissible to show that the character of the defendant for chastity was bad. But it was not permissible to prove that the reputation of the house, was that of a house of ill-fame. — Wooster v. State, 55 Ala. 217; Nan Toney v. State, MSS. Nor is the opinion of witnesses that the house is a bawdy-house, or a nuisance, admissible as evidence. — Smith v. Commonwealth, 6 B. Mon. 21.

4. It is the duty of a presiding judge, in all cases, civil or criminal, to give strict attention to the evidence. And it is also his duty, to propound to the witnesses such questions as he may deem necessary to elicit any relevant and material evidence, without regard to the effect of such evidence, whether it may benefit or prejudice the one party or the other — the development and establishment of the truth, is his purpose and duty. But we cannot regard it as within his province to converse privately, either in, or out of court, with a witness, to ascertain whether he has knowledge of particular facts; or to suggest to the witness, after his examination, that there are facts, other than those to which he has testified, within his knowledge. A juror would not be allowed to call a witness to him, and privately inquire as to his knowledge of facts, and then so shape his questions as to elicit the facts of which he had made inquiry. The questions a judge, or a juror, propounds to a witness, should be such as are suggested by the evidence given on the trial. We. would hesitate to affirm any judgment of conviction, supported by evidence elicited from a witness., on an examination by the presiding judge, after a private inquiry of the witness, by the judge, as to his knowledge of the facts of the case. Especially, if as in this case, the witness had been examined in chief for the State, and the defendant had declined to cross-examine him, before the inquiries and examination of the judge. We do not impute, or intend to impute intentional impropriety to the presiding judge. We are compelled to deal with facts, as they are presented by the record.

5. The evidence elicited from the witness was wholly illegal, and the objection to its admissibility should have been sustained. It had no tendency to prove the offence with which the defendant was charged. The witness may have had many good reasons for objecting to the visits of his son to the house of the defendant, other than that it was a house of the kind charged in the indictment, and so may his wife. Nor was it permissible for the witness to state that he had reasons for believing his son was in the habit of visiting the house. Those reasons may have been, and probably were, all founded on hearsay. Nor was there shown any fact, with which the frequency of the son’s visits was connected, which tended to show the character of the house.

6. Disturbance of the public peace is not an essential element of the offence charged against the defendant.— Commonwealth v. Garnett, 1 Allen, 7. The defendant may not have consented to any such disturbance, and on its occurrence, may have employed all the means at her command to prevent or to suppress it, yet, if she kept a house for prostitution, frequented by lewd persons of both sexes, the offence is complete. The court did not err, in rejecting the evidence proposed, of her applications to the civil authorities to suppress disturbances on the premises. The fact of such disturbances, was of more or less weight against her, dependent on their cause and frequency, and the character of the persons engaged in them.

7. The evidence of the witness Wood was irrelevant. The character of the conversation he heard is not shown, nor any fact which in the least affects the fame of the house or of the defendant. No higher duty rests on the court, than the exclusion of evidence wholly irrelevant. The party against whom it is offered, can not be supposed to anticipate its introduction, and be prepared to explain or contradict it. Nor can its effect on the jury be known, or removed certainly; and its tendency is to distract their attention from the real issues, and the material, relevant evidence.

It is not necessary to notice any other question presented by the record. The judgment is reversed, and the cause remanded, but the defendant must remain in custody until discharged by due course of law.