McRae v. Cassan

OPINION OP THE COURT. MECHEM, J. This was an action for rent brought by appellee against the appellant as surety for one McRae. • The only question here arises on the affirmative defense of appellant by which he tried to establish that the lease was illegal, alleging that Cassan had knowingly leased the premises for illegal and immoral purposes, and that the said premises were located within seven hundred feet of a church. There is no doubt but that it is the law. that where a building is leased with the intent that it is to be used as a house of prostitution, and the house is so used, the lessor cannot recover rent, especially where there is a •statute that makes it a misdemeanor to lease to another a house to be used for the purpose of prostitution. 18 Am. ■& Eng. (2nd ed.) 317. Section 2, Chapter 84, Laws of 1901, is as follows: “Sec. 2. Eveiy person who shall knowingly lease or let to another any house or other building, for the purpose of setting up or keeping therein any such brothel, bawdy house, house of assignation or prostitution, as mentioned in the foregoing section, within'seven hundred feet of any school house, college, seminary, or other institution of. learning, or any church, opera house, theater, hall of any benevolent or fraternal society, or other place of public assemblage, or for the purpose of being kept or used as such brothel, bawdy house, house of assignation or prostitution, shall on conviction thereof be adjudged guilty of a misdemeanor, and punished as provided in section one of this act.” In order, therefore, to bring the lease in question within the terms of the statute, or the general rule of law applicable, it was incumbent on the appellant to prove that the appellee did “knowingly lease the building for the purpose of setting up or keeping therein a house of prostitution.” The case was tried before the court without ■ a jury and judgment given for the appellee. 1 1. Eight assignments of error are made by appellant. Of these the first three were abandoned by counsel as no mention is made of them in the argument contained in their brief, at least they will be considered as waived. 3 Cyc. 388. 2. It is assigned as error in the fourth assignment that the court below erred in sustaining an objection of appellee’s attorney to the following question: “What was the Bed Light District first known as, over there — what was the purpose of it?” Whether or not the court erred in sustaining this particular objection is not necessary to decide, for an examination of the testimony in the case shows that the character and constituency of the “Bed Light District” were very minutely described and the trial court fully advised on that subject. 2 Objection by appellee’s counsel to the following question was sustained by the court: “Was it common knowledge that this house was being erected for sporting purposes, before.it was completed?” and this is assigned as error in the fifth assignment. It was shown that the lease was entered into before the house was built. As claimed by counsel for appellant, there is authority to the effect that a house of ill fame may be proved to be such by reputation, but here the question was, did the appellee knowingly rent the house with the intent that it should be used as a. house of ill fame. It would be going a long way, indeed, to admit hearsay evidence to prove intent. 3. Assignments Nos., 6, 7 and 8 may be-considered together. They are: No. 6. “That the trial court erred in finding from the evidence, in favor of the plaintiff or the appellee and against the defendant or appellant.” No. 7. “That the decision rendered in said cause, by the trial court, in favor of the appellee and against the appellant, is against the weight of the evidence produced in the trial of said cause,” and No'. 8. “That the decision of said canse, by the trial court, in favor of the appellee and against the appellant, is contrary to the laws of this Territory.” 3 These assignments are too general. They do not point out any specific' error complained of and this court has held in numerous cases'that such general assignments of error will not be considered on appeal. Cevada v. Miera, 10 N. M. 62; Schofield v. Territory, 9 N. M. 526; Melini & Eakin v. Freige Bros., (decided at this term). 4 We have, however, examined the record carefully and find that there was substantial evidence to sustain the judgment of the trial court. Candelaria v. Miera, 13 N. M. 360. Finding no error in the record, the judgment of the lower court is affirmed.