
    The People vs. Charles N. Baldwin and Charlotte Baldwin.
    A Theatre a disorderly house.
    
      Disorderly House.
    
    The defendants were charged in an indictment in the - „ common form for a nuisance./
    The facts of the case were as follows: the defendants were Managers of the Theatre in Warren street, called the City Theatre. It appeared, by the testimony, that the defendants had got up this establishment abotone year ago, at considerable expense and trouble ; that it was built partly of brick and partly of wood, in rather an imperfect manner, the sound and noise escaping to the great anoyance of those in the immediate neighborhood. The situation was also proved to be too confined for a Theatre, the lot on which it was erected being about 100 feet deep, and of very moderate width.
    It was also proved that a great number of young boys assembled about the door on the evenings of performance using profane language, and making a great noise ; that indecencies were committed about the doors and windows of the inhabitants who lived in the immediate vicinity of the Theatre ; that the applauses inside the Theatre were very loud and boisterous, so much so, that it was impossible those living adjacent to the Theatre, could retire to bed, or if they retired, could sleep before eleven or twelve o’clock ; that the noise proceeding from the house was not similar to thát heard in other Theatres, made ^ the audience in approbation or disapprobation of the actors; but was a kind of savage yell. It was also proved> d13-1 in two ov three instances, admission had been given gratis to prostitutes, and women of bad character ; that 017 7 and women had been seen in indecent attitudes in the dressing room ; and those facts being proved, by respectable witeesses, Maxwell, District Attorney, rested the case.
    On the part of the defendants, a great number of witnesses were called, who testified that the same order was kept and observed as in other Theatres ; that similar rules and regulations were declared and in force—they had not seen or^keard any riotous conduct in the house—• the noise cornplained of was the applauses given by the audience; that a great number of respectable people attended ; that a number of peace officers visited the Theatre for the purpose of enforcing order and quietness; that thenoise about the door proceeded from a collection of boys and others, who had no connection with the Theatre, &c.
    
      Fay, D. Graham, and Phoenix, counsel for the defendants,
    were proceeding to show that this Theatre was conducted on precisely the same principles as other Theatres, not only in this country, but also in Europe.
    
      Maxwell objected.
    He contended that the government of other Theatres had nothing to do with this, nor could any irregularity in them justify the unlawful conduct of the defendants; and after all, it was merely matter of opinion ; that whether this Theatre was so conducted as to be a nuisance, depended entirely upon the evidence of facts, In and about that Theatre, and connected with it.
   The Court refused to hear evidence of the administration and government of other Theatres, in justification this.

The counsel for the defendants, also contended that a Theatre was recognized by law. It was not of itself a nuisance, and only became so by mismanagement; and if they were able to show to the Court and jury, by respectable witnesses, the Theatre was properly governed, it would not be viewed as a nuisance, even if two or three neighbors adjoining, were disturbed; that private convenience must give way to public good.

The Court were of a different opinion, and decided accordingly. They observed that a Theatre per se, was not a nuisance, but might become so by the misconduct of those concerned in it; in all such cases,the nuisance ought to be abated; the law regarded so highly the comfort, convenience, and the peaceable and quiet enjoyments of the citizen, that in the case of extensive manufactories and establishments of trade, when they were found detrimental to health of individuals, or where they destroyed their repose, or where the public generally suffered an inconvenience, it was a nuisance, and ought to be abated. It did not depend so much upon the place—a Church might become a nuisance if the conduct of the worshipers there, and others, which was to destroy the peace of the' neighborhood.

It was proved by the testimony of Mr. Noah, Mr. Hatfield, and others, that they had occasionally stopped into the Theatre, and had seen no impropriety either in the audience or players; that the plays were performed as in other Theatres; that Mrs. Baldwin was a good actress and a respectable woman. It was proved by other witnesseS) that in many plays it was customary for women to dress themselves in male costume, and that they might verY well be mistaken for each other, through the windows of the dressing room, by the neighbors, and that the dress-room for the different sexes, were entirely distinct and separate.

The case was summed up to the jury, by T. Phamix and D. Graham. They contended that this was a novel prosecution, and not supported by thé evidence offered to the Court and Jury. It fvas satisfactorily proved the defendants were people of good characters, and had expended large sums of money in the erection and preparation of the Theatre ; a conviction would throw them and a number of people out of employment—the object of the defendants was laudable and praiseworthy in offering to the public refined and rational amusement—a Theatre whatever were the opinion of some people, was by the liberal and enlightened looked upon as a place of refined taste, where the mind might be relaxed, and the judgment improved. Formerly, the Theatre was the birth place of genius; the greatest orators were not ashamed .to own their eminence to the Theatre.

They contended, that by the evidence, it was apparent it could not come within the definition of a disorderly house; that even admitting the particular acts of disorder com■plained of, and 'testified ■ to by the witnesses, it could not be considered a nuisance; to constitute a disorderly house, it was necessary the acts should be continued, and that two or three particular acts of disorder could not make it :so; and cited City Hall Hec. vol. 3. p. 134. And that -the defendants could not be answerable for the noise and tumults about the door of the Theatre ; they were an assemblage of boys and others, over whom the managers had no control; and argued that that, did not make it a disorderly house ; and cited City Hall Rec. vol. 2. p. 53. They contended that it was not sufficient that the establishment was merely disagreeable to a few of the neighbors in the immediate neighborhood ; it must be such a nuisance as to interrupt the public in the reasonable enjoyment of life and property; and cited City Hall Rec. vol. 4. p. 87. “r

Maxwell, for the prosecution, observed that he thought it his dutywto press this case upon the attention of the Court and Jury; this Theatre had become so disorderly and noisy that it was a duty he owed to the community, and to the neighborhood particularly, to ask for an abatement of this nuisance. Other Theatres had been referred to. He meant no invidious comparison by mentioning the Park Theatre. It was obvious there was no comparison between them. The Park Theatre was built of permanent materials—the walls were thick, and prevented the noise being heard in the neighborhood. Here was means adequate to the end. Care had been taken in the erection of it, to prevent the occurrence of disorder complained of in the other Theatre. The situation of the two Theatres were different; one was situated . in a wide and public street, surrounded by public houses, with the Park in front; the other was confined in a retired street, and surrounded with private houses ; it was built partly of brick and partly of wood, the noise and sound escaping and disturbing the neighborhood. It was plain the means; of the company were adequate to the object and end of a Theatre ; it was therefore apparent there was no analogy between them. But the mismanagement of other Theatres ^a(j not}j}ng t0 ¿y with this. He should be able to show, from the evidence, that the acts complained of, were disorderly, and the Theatre a nuisance. According to the testimony of a number of respectable witnesses who lived jp imme¿iate vicinity, they were annoyed not only by the noise and tumult, and profane cursing and swearing of those about the door of the Theatre, but also by their indecent conduct about the doors and windows of private houses, and this, not only fr,om those that frequented the house, but also from some of the company themselves.— That it had been satisfactorily proved that prostitutes had been admitted gratis into the Theatre ; and obscene and immodest conduct had been witnessed by the neighbors through the windows of the dressing room; and that the noises «in the house spoken of by the witnesses, were not the plaudits given by the audience to the actors, but was the noise and tumult of a mob.

The counsel admitted the law recognized a Theatre, but that when perverted from its true object, it became a nuisance, and ought to be abated.

The Court observed, that it had been objected, that the ward laid in the indictment had not been proved. But it was unnecessary to prove it. The Court were obliged to notice it as being in the ward laid in the indictment by the statute law of the State. And that a house might be a. nuisance on several grounds.

1. Where it disturbs the neighborhood, or those living in the immediate vicinity.

2 Where the public peace generally is disturbed.

3. Where the house is dangerous to the community, as a powder ma gazing &c.

4. Manufactories, é some, and disagreeable smells by emitting noisome, unwhole-

5. A quiet house, or at least one which did not disturb the neighborhood, might become a nuisance, by gambA baxvdy-house, although it might not disturb the . , , , , . , neighborhood, was, nevertheless, a nuisance, or any in which immoral or indecent conduct was admitted. ling.

The Court observed that the good of the community was a paramount object—a Theatre was not of itself a nuisance, but only became so by improper management of those concerned in it ; and when kept under proper regulations, it was well calculated to refine the taste and exalt the sentiments of mankind ; but when the object of it was prostituted—whefi it became a scene of disorder and riot— when the original design of those institutions were so far lost sight of as to allow indecent and immoral conduct, to the disturbance of the neighborhood, it then became a nuisance, and punishable as such..

• The Court further stated, that the audience had a right to applaud—it was a fair exercise of opinion on the merits and demerits of the performers—it gives force to public sentiment, and it is a lawful way of expressing that sentiment, to applaud a noble action, and decry a vicious one. i

After the protection of life and liberty, the law sets the greatest value upon peace and quietness ; it will not permit our rest to be broken and our peace disturbed. The labour, care, and attention of families is so necessary for their support and maintenance, that they cannot have their rest broken, and their repose, so necessary to obtain those objects destroyed,

The law never will put places of public amusement and pleasure upon a footing with the dwellings of private families. The right of individuals to security, peace, and quietnessj cannot be destroyed.

The Court observed that it was a simple question for the jury to decide ; they had heard the evidence and the comments upon it by the counsel; that a great number of witnesses had been called, who testified that they knew of no disorder ; but others had proved acts of indecency had taken place in front of the Theatre, and about the doors and windows of the neighboring houses ; that the neighbourhood had been disturbed by the noise and profane swearing in front of the house—that a man had been seen exposed naked at the window, &c. And concluded, that if the jury were of opinion the defendants were concerned in the management of the Theatre, it would be their duty to find them guilty, if they believe the evidence warranted them in finding them so.

The jury found Charles N. Baldwin guilty, and Charlotte Baldwin not guilty, of keeping a disorderly house. 
      
      See post, pages 290,291. (Note.)
     