State v. . Calley

Merrimon, C. J. — after stating the case: Accepting the evidence as true, the defendant was guilty of reprehensible, vicious and disgraceful conduct on repeated occasions, but it did not prove, in any reasonable view of it, that she kept, in a legal sense, a bawdy-house — a house as a habitation for prostitutes — a house of ill-fame kept as a place of common resort and convenience of lascivious and lewd people of both sexes. It proved that she was a woman of loose morals — a lewd woman; that she sometimes — it might be inferred,frequently — had sexual intercourse with men in and about her house, and her daughters did likewise with her knowledge, but it did not prove that her house was a place of common resort for prostitutes and lewd people of both sexes. She and her daughter were lewd women doing acts of prostitution in her own house This does not make the offence of keeping a bawdy-house. State v. Evans, 5 Ired., 603; 1 Bish. Cr. Law, §§ 1037, 1038. Nor do we think the evidence sufficient to prove that the defendant kept a disorderly house, as charged in the indictment. It was not sufficient to prove the nuisance charged. It did not appear, from any reasonable view of it, that she lived in a town or thickly settled neighborhood, that she kept a drinking place, that drinking and drunken-men *860 and women from time to time assembled there, as well in •the night as in the day ; that many such dissolute people frequently resorted thither “to be, and remain, drinking, tippling, cursing, quarreling, and otherwise misbehaving themselves,” as charged, or that the neighborhood or passersby or about there were at all disturbed, or that they knew of the immoral conduct of the defendant and her daughter in the house of the former. State v. White, 89 N. C., 462; State v. James, 90 N. C., 702; State v. Atkinson, 93 N. C., 519. It is keeping the house in such way and manner — helping, encouraging, permitting or tolerating such pernicious Acts, things, transactions and practices in and about it — as creates an evil example to be seen, annoys, disgusts, scandalizes, shocks the moral sense, offends against the decencies and proprieties of the public generally, or the people of .a particular neighborhood or vicinity, or the passers by on a particular highway that create and constitute the nuisance charged. As we have seen, the evidence did not prove such facts or the substance of them. It proved little •more than that the defendant and her daughter were whoreish persons in and about the house of the former, of whose immoral practices the people generally in the vicinity and passers-by saw and knew but little, if anything, by ■observation or common reputation. It may be that the facts were far otherwise, to the great grievance of the community in which the3r occurred, but the evidence produced on the trial, as it comes to us, was not sufficient to so prove them. State v. Patterson, 7 Ired., 70; State v. Wright, 6 Jones, 25; State v. Robertson, 86 N. C., 628; State v. Wilson, 93 N. C., 608. The Court should have told the jury that the evidence produced was not sufficient to warrant the conviction of the defendant, and to render a verdict of not guilty. As it did •not, there is error and the defendant is entitled to a new trial. To that end, let this opinion be certified to the Superior Court according to law. Error.