Commonwealth v. Lambert , 94 Mass. 177 ( 1866 )

By the Court.

The defendant is indicted for keeping “ a common nuisance, to wit, a tenement used by her as a house of ill-fame, resorted to for prostitution and lewdness.” The first instructions given by the court at the trial were substantially correct; and although the first ruling asked by the defendant, and refused by the court, might properly have been given, we cannot see that those which were given were not all that the case required.

The argument for the defendant that the word “ lewdness in the statute applies only to the common law offence of open and public indecency, cannot be supported. We have no doubt that it includes illicit sexual intercourse, and the irregular indulgence of lust, whether public or private.

But the last instruction which was given to the jury was defective and erroneous. The permission by the keeper of a house of a single act of illicit intercourse within it does not of itself constitute the offence described in Gen. Sts. c. 165, § 13, or in c. 87, § 6. To hold that it did would be to leave wholly out of view the meaning of the phrase “ resorted to,” as used in those sections of the statute. In the language of Chief Justice Bigelow in Commonwealth v. Stahl, 7 Allen, 305, “ the prohibition is against keeping or maintaining a house which persons are permitted to frequent for the purpose ” of unlawful sexual indulgence. “ The mischief which the statute seeks to prevent is the existence of such places of resort, with the temptations which they hold out and the vices which they engender and encourage.” We do not mean to be understood as holding that, to prove the offence charged, there must necessarily be direct evidence of numerous acts of prostitution or lewdness permitted by the keeper of the house. But the evidence, whether direct or circumstantial,- must be sufficient to satisfy the jury that it was kept as a place of resort for such purposes.

Exceptions sustained.