Clementine v. State

Birch, J., delivered the opinion of the court. The defendant was indicted for keeping a common bawdy house, and ;the circumstantial testimony of the witnesses being deemed sufficient to (justify her conviction, the verdict of the jury, upon that score, will of Bourse remain undisturbed. The alleged error of the criminal judge, 1 misdeclaring the law and misdirecting the jury, will constitute, there-Hje, the only question to be reviewed by this court. is complained of by the counsel for the defendant, that it was iin-Hftper in the court to admit testimony respecting the character of the BBmen who lived and were lodged in her house ; and that the testimony Wiich was given respecting the character and behavior of the men who liequented the establishment, and its effects upon the peace and good lorder, and consequent enjoyment of the neighborhood, was in like manner irrelevant and improper. These objections, are, in my opinion, sufficiently answered by the authorities to which we have been referred by the counsel for the State, as indeed an original answer would be readily suggested and applied, (upon general principles) from the necessity of the case, were it now for the first time presented for judicial consideration. The exemption from testifying with which, (in this case it was too broadly assumed) the law invests those who may probably be the only persons who can establish the fact direct, necessarily presupposes the admissibility of circumstantial testimony of the character objected to, of which it may be as well to remark here as elsewhere, that the refusal of various witnesses to testify in the casej upon the ground that answers to the questions which were propounded to them, would tend to their own degradation, might well be considered by the jury in making up their ver-Uiaf [115] In this connection it may be proper vnore specially to remark, that an answer to several of the questions which were asked by the State, but to which the witness objected, might well enough havebeen enforced by the court; but, as in view of the affirmance of the judgment in this ease, the points which have been made by the attorney for the State, are not necessarily here involved, we but add our concurrence in the establishment of the general modern doctrine, “that where the transaction, to which the witness is interrogated, forms any part of the issue to be tried, the witness will be obliged to give evidence, however strongly it may reflect on his character.” As the indictment expressly charges the keeping of this house to have been a “common nuisance” to the neighborhood; and as a bawdy house is so regarded at common law, “both on the ground of its corrupting public morals and endangering the public peace,” and as such a nuisance might moreover be regarded as naturally resulting from the aggregate of circumstances with which it was proper the jury should be not only correctly acquainted, but also correctly impressed, we perceive no sufficient cause to reprehend the latitude of examination, both for and against the accused, upon the point in question. Respecting the testimony given by the witness Teel, as the record does not show that what he stated was in the slightest degree prejudicial to the accused, but rather in her favor, we do not feel that it presents a case in which we are even called upon to revise the discretion which the criminal or circuit judge may always exercise in cases of like manner, however strong, the testimony. As it does not appear that in the manner of propounding the question to Kennerly; concerning his.threats to destroy the defendant’s property, a proper foundation was laid for calling a subsequent witness to contra-diet him, no witness could be properly admitted for that purpose ; much less could one be called, and an answer put into his mouth, by the terms of the question asked him, ás in this case. The rule,,in such case, and the reasons for them are too familiar to need repetition. As to the instructions, those given by the court having been sufficient for all the purposes of a fair and impartial trial, the finding and judgment cannot now be disturbed because others were refused. It is, therefore, in all things affirmed.