Hawkins v. Lutton

PiNNey, J. 1. The ordinance for the violation of which *the defendants arrested the plaintiff provides that “any person who shall, within the limits ... be an inmate of, visit, resort to, frequent, or be found in a disorderly house or place, ■or a house of ill fame, or a place resorted to for the purpose of prostitution, assignation, fornication, or for the resort of persons of ill fame, or ill name, or dishonest conversation, or common prostitutes, shall, upon conviction thereof, be punished,” etc. The trial court held that a house could not be considered a disorderly house unless it was a house of ill fame, resorted to for the purpose of prostitution, assignation, fornication, gambling, etc., and charged the jury that the arrest of the plaintiff could not be justified unless the fact that the house of which the plaintiff was an inmate was a house of prostitution was proved to the satisfaction •of the jury; that the word “ disorderly ” must not be construed to mean a house in which quarrels, disturbances, and that class of things occur, but must be construed in the more restricted sense, as meaning a house used for the purpose of prostitution, gambling, etc. The ordinance is clearly ■directed against disorderly houses and places, independent ■of the question whether they are houses of ill fame, or places resorted to for the purpose of prostitution, etc., or for the resort of persons of ill fame or ill name or dishonest ■conversation, or common prostitutes. A house the inmates of which behave so badly as to become a nuisance to the neighborhood is esteemed, at common law, a disorderly house, and — 498 — so of one which is kept in. such a way as to disturb or scandalize the public generally, or the inhabitants of a particular neighborhood, or the passers-by. 2 Wharton, Or. Law (7th ed.), § 2892; 5 Am. & Eng. Ency. of Law, 693; State v. Wilson, 93 N. C. 608. And it seems that a complaint fox?keeping such a house may be maintained by proof that only one person in the neighborhood or community was disturbed' or annoyed, if the acts done were of such a nature as tended to annoy all good citizens. Comm. v. Hopkins, 133 Mass. 381. The term “ disorderly house ” denotes a house or other like place in which people abide, or to which they resort, disturbing the repose of the neighborhood, violating public order and tranquillity. 1 Bish. Cr. Law, § 1106; Garrison v. State, 14 Ind. 287. The ruling of the trial court was clearly erroneous, and, in its application to the case, practically nullified an important clause of the ordinance,, designed to preserve the public peace. The same error occurs in other instructions given, and in instructions refused, and in ruling that evidence that there were disorderly noises,, boisterous, profane, and obscene language, frequently emanating from the house, and fighting and quarreling and conduct of that kind carried on therein, could not be received as a justification of the arrest. The court, however, admitted considerable such evidence, but erroneously restricted its effect to showing, in connection with other facts, that the house was a house of prostitution. It is said that the' defense that the house here in question was a disorderly house was not set up in the answer, but we think that the-answer, though crude and general, was sufficient, in substance, to admit the evidence. The remedy of the plaintiff, if it was deemed indefinite and uncertain, was by motion to correct the answer. 2. It is argued that the arrest of the plaintiff without a warrant was illegal, and cannot be justified. The defendants, by virtue of their offices, were conservators of the pub499 lie peace, and bad a right at common law to arrest all persons w;ho were guilty of a breach of the peace, or other violation, of the criminal laws, in their presence; but in all such cases the arrest must be made at the time of the offense, or immediately after its commission. The provisions of the ordinance pleaded in that behalf are substantially to the same effect, and authorized a summary arrest of any one in the act of violating any of the general laws, or any ordinances of the city passed in accordance therewith. The city council had power to pass such an ordinance, authorizing police officers to make arrests of persons engaged in a breach of the peace without warrant, such authority not being repugnant to the general laws of the state. 1 Am. & Eng. Ency. of Law, 735, notes, and cases cited; Comm. v. Hastings, 9 Met. 259; White v. Kent, 11 Ohio St. 550. A disturbance and violation of public order is a breach of the peace. 2 Am. & Eng. Ency. of Law, 515. The evidence tends to show that the alleged violation of the ordinance may fairly be said to have been committed in the presence of the defendants. They had heard the disturbance and disorderly conduct from the outside of the house, and the evidence tends to show that they had been summoned there, or their attention had been attracted to it. The chief of police arrived in time to become aware of the conduct in progress within, and, acting in apparent good faith and on what appeared to be reasonable ground, ordered the house to be fulled. The policemen at once entered the house, and found the plaintiff an inmate and abiding therein. The evidence tends to show that she was its proprietor. The authority of conservators of the public peace to make arrests in such cases should be liberally construed and upheld, but always at the risk that they will be liable if it be misused or abused. People v. Bartz, 53 Mich. 493; Ballard v. State, 43 Ohio St. 340; O’Connor v. Bucklin, 59 N. H. 589; State v. Russell, Houst. Cr. Cas. 122. — 500 — For these reasons, we think there must be a' new trial. The order setting aside the release appears to have been warranted by the facts, and should be affirmed. The appeal from the order refusing a new trial cannot be sustained. The order was not appealable. Laws of 1895, ch. 212. By the Court.— The order setting aside the release, appealed from, is affirmed; the judgment of the superior court is reversed, and the cause remanded for a new trial; and the appeal from the order refusing a new trial is dismissed.