
    Brockway vs. The People.
    Every act done in furtherance of a misdemeanor is not the subject of indictment; but to constitute it such, it must tend directly and immediately, if not neeessajály, to the commission of the misdemeanor.
    Hence, the renting of a house to a woman of ill fame, with the intent that it shall be kept for purposes of public prostitution, is not an offence punishable by indictment, though it be so kept afterward.
    Cowen, J. dissented, holding that the lessor of a house demised and kept for such purposes might be indicted as the keeper of it.
    Error to the mayor’s court of the city of Albany, where Brockway was found guilty under an indictment charging him with having demised his house in the city of Albany to be kept as a common bawdy house, and that it was so kept. It appeared on the trial, ■ that the prisoner entered into a contract with one Julia Ann McKinney, dated Januarv 30th, 1841, by which he agreed to give her a quit claim deed of a certain house and lot of ground in Albany on the 30th of January, 1857; in consideration of which she agreed to pay him ¡$5000, in instalments of $6 per week, until the time appointed for executing the deed; she in the mean time to have possession of the premises. It was also agreed, that in case the said Julia should fail to fulfil the contract on her part, the said Brockway might re-enter upon the premises the same as if occupied by the former as. tenant, and the tenancy had expired. Evidence was given on the part of the prosecution tending to prove, that the house was in fact let to be kept as a brothel, and that the contract was a mere contrivance of the prisoner to avoid criminal responsibility. It further appeared, that Julia took possession of the house immediately after the execution of the contract, and had ever since kept it as a house of ill fame. Among other items of proof to establish the latter fact, the district attorney proposed evidence of general reputation that the character of the house was bad. The prisoner’s counsel objected, but the court received the evidence. The court charged the jury, among other things, that if they were satisfied the contract in question was made for the purpose of evading the consequences of an open letting of the premises, they would be justified in finding that Julia Ann McKinney was a tenant of the prisoner; and that if they believed the house was kept with the knowledge of the latter as a house of public prostitution, he was guilty of the offence charged in the indictment. The prisoner’s counsel excepted. The jury found a verdict of guilty, upon which judgment was rendered; and the prisoner sued out a writ of error.
    
      J Koon, for the plaintiff in error.
    
      H. G. Wheaton, (district attorney,) for the people.
   Nelson, Ch. J.

It will be admitted by all, that the act of renting a dwelling house to be kept for purposes of pub-lie prostitution, is, in itself, highly indecent and immoral, evincing a mind deeply depraved and profligate. Indeed, the act is so characterised by the common law, which denounces the contract as illegal and void; But I cannot say that it constitutes a criminal offence punishable by indictment. We have no statute on the subject; and I have been unable to find, after a good deal of search, any precedent or authority in the English common law which would warrant me in sustaining, as I am certainly inclined to do, the conviction in this case. The present indictment is probably the first experiment of the kind in this state, though the offence charged must have been of no uncommon occurrence in oiir principal cities and towns, even conceding the morals of their inhabitants to be as -exemplary as those of like places in other states and countries. The legislature have repeatedly acted upon this and kindred subjects, for the purpose of a more effectual suppression of vice and immorality; but have not noticed the particular case before us. (See 1 R. S. 645, 6, 7, 2d ed.; also 2 id. 586, § 29.) It is true, that the act for which the prisoner was convicted in this case, has been held to be a misdemeanor in a sister state; (Commonwealth v. Harrington, 3 Pick. R. 26;) but the indictment there was sustained upon the principle of the case of King v. Phillips, (6 East, 464.) where it was held, that an endeavor to provoke another, by letter, to commit the misdemeanor of sending a challenge to figljt a duel, was of itself a misdemeanor. The latter case is in many particulars analogous to the one under consideration; as the renting of a house for the purposes of prostitution may be said, in one sense, to encourage and aid the lessee in the commission of a misdemeanor. But the act of renting, as tending to this result, is certainly more remote and indirect than the sending of an irritating and provoking message to another for the express purpose of inducing him to return a challenge. In one case, the means are furnished by Avhieh the party is enabled to perpetrate the crime ; while in the other, the act tends directly and immediately to its accomplishment. Would an armorer who should furnish weapons for a hostile meeting between persons about to engage in a duel, be guilty of a misdemeanor? Or would the like consequences result to a cabinet maker who should provide furniture for a house of ill fame with full knowledge of the purposes for which it was obtained ? It cannot be pretended that either would be adjudged guilty of a crime; and yet the same reasons exist for sustaining a conviction in those cases, as in the one under consideration.

The act of sending a challenge or of endeavoring to excite and provoke a challenge, is indictable as a misdemeanor, because it tends directly and immediately to a breach of the peace; but it is not every harsh and irritating word or speech, though in a measure tending to this result, that constitutes an offence. Thus, it is no crime to call a man a liar or a knave, for the reason that the use of these epithets is too remotely dangerous to the public peace to become the subject of an indictment. (Regina v. Langley, 2 Ld. Raym. 1029; S. C., 6 Mod. 124; 1 Russell on Cr. 276.) Neither is every act done for the promotion of vice and immorality, or tending to that end, the subject of criminal cognizance, even where -the immorality itself is indictable at common law or by statute. The tendency of the act complained of must, at least, be such as directly and immediately, if not necessarily, leads to the commission of criminal immorality.

The public are pretty well guarded against the offence of keeping houses of ill fame. The keepers of them are subject to indictment at common , law, and may be proceeded against as disorderly persons under the statute. Individuals in the habit of resorting to such places may also be punished as disorderly persons. The landlord of a house let for purposes of prostitution, cannot recover his rent; (Lloyd v. Johnson, 1 Bos. & Pull. 340, 341, and cases there cited; Girardy v. Richardson, 1 Esp. Rep. 13;) nor can a merchant or artizan collect the price of articles furnished under the expectation of being paid out of the profits of prostitution; (Bowry v. Bennet, 1 Campb. 348;) nor can a housekeeper recover the price of lodgings let with like expectations. (1 Selw. N. P. 68.)

In the absence of any precedent or authority in the common law either in England or this state, and for the reason that so many statute regulations and judicial decisions have been made having for their object the suppression of the offence out of which this indictment has .grown, without even hinting at the particular offence charged, I prefer leaving it to the legislature to declare its criminality, if deemed expedient to impress that .character upon the act; and am of opinion, therefore, that the judgment should be reversed.

Bronson, J. concurred with the Chief Justice.

Cowen, J.

dissenting. A majority of the court being m favor of the defendant below on a ground fatal to the prosecution, it becomes unnecessary to examine the question whether the evidence of reputation resorted to at the trial was properly admitted. The authorities are conflicting, and so far as this point is concerned I certainly feel no other sentiment than that of satisfaction in being relieved from the duty of examining their force.

It is, I confess, with a sentiment somewhat different that I find the offence imputed by this indictment, highly immoral as it is, about to be pronounced intangible by legal punishment. If any one of the attributes of the common law may be said to stand above the rest in point of excellence, its well known power of pursuing iniquity through all disguises, of stripping from crime the forms under which it seeks to mask itself, and dragging the offender from the' darkest recesses of fraudulent evasion, has seemed to me to occupy that position. This power I do not understand to be denied; and the only enquiry is, whether it exist in sufficient force to reach the defendant below.

That the act of keeping a bawdy house is a” misdemeanor, is not and cannot be controverted ; nor is it pretended to be one of that venial character, which calls for the least leniency in the application of the rules by which offences of ' a similar grade are defined. The indictment charges and the jury have found, that the accused demised his house in Albany for the purpose of its being used as a bawdy house, and that it was thus used. The evidence is entirely clear that these things were so in truth, though the parties sought to obscure their purpose by throwing the transaction into the form óf a sale to be executed at a remote period, the consideration money being made payable in small instalments at short intervals as the tenant might acquire means from her guilty and disgusting occupation. The contract was- legally null; and on the facts disclosed the defendant might at any time have ousted the tenant by ejectment. In short, the defendant was the principal mover—the regular participant in the profits of a criminal nuisance under his direct control; for he would not have been liable in trespass had he even entered personally without suit, and put an end to the tenant’s possession.

It is an elementary principle, that all executory contracts intended as subsidiary to the purposes of public or even private prostitution, are void. Now I need only the application of another principle, equally well established and familiar, to satisfy my mind that the defendant should be held guilty of having established and continued the nuisance in question; and it is this, that every one who aids or merely advises the commission of a trespass or misdemeanor, becomes a principal offender and indictable as such, if the offence be subsequently committed. The only fault I have to find with the indictment here is that, instead of directly pursuing this principle, it resorts to the supposition of a lease as the link by which the defendant became connected with the crime. The indictment would have been better in form, and I think equally in correspondence with the proof, had it charged the defendant at once with keeping a bawdy house. It is not the habit of the-law to mouth matters in cases like the present; but to speak of their legal effect directly and plainly. According to my recollection, the common law has uniformly treated the man who advises, supplies the means and reaps the profits of a misdemeanor, as a direct offender. One counsels another to commit an assault and battery and furnishes him with the weapon by which the offence is perpetrated ^ the former is indictable as if he were present and personally struck the blow. If he procure the like offence to be committed by demising his farm, would not the legal consequences be the same? Suppose a tenant actually covenants with the landlord to keep a bawdy house in consideration of a lease, no one, it seems to me, could doubt the landlord’s guilt on the principles I have mentioned; and yet the case at bar is really the same as the one supposed. The covenant mentioned would have no more bound the lessee, than the oral understanding which was here shown to exist. Both would be equally void as contracts, and in either case the action of the parties by way of carrying on the nuisance and paying and receiving its profits, would be entirely voluntary. We should hold them void as contracts for the very reason that they would be valid as evidences of crime.

It may be said—indeed, it is always said in cases of this kind-—that men may sell or demise their property for what price or rent they please. No one will deny this, when taken with the proper qualification, viz: that they shall not couple with such a transaction .any criminal stipulations or understanding. Men must act in good faith, and with due reference to the interests of others. Sic vtere tua ut alienum non laidas. It is true, there is nothing on the face of the paper under which the nuisance in question was established evincing any illegal purpose. But I must, with deference, protest against imputing to the common law such helpless imbecility as an argument founded upon this circumstance necessarily implies. A man can no more escape the truth, by calling his agreement to have a bawdy house kept or other crime committed, a lease or a deed—even though he give it the appearance of the one or the other by way of coloring over the transaction—than he can neutralize the effect of poison by calling it an antidote. It is a fraud upon the criminal law; and as impotent for the purposes of disguise or defence, as are the cabalistic words or phrases adopted by a community of burglars. The universal rule in regard to fraud, usury and crime is, that whatever specious or delusive appearance parties may give their contracts or other instruments intended as the means of mischief, the law will assign them their true character and call them by their right names.

The very point now in controversy before us, has been adjudged against the defendant below by the supreme court of Massachusetts; (Commonwealth v. Harrington, 3 Pick. Rep. 26;) and it seems to me the adjudication is well sustained by obvious principles. I am opposed to a new trial on the merits, upon the ground, that where a man demises or lets out his premises to be used for the purpose of establishing and continuing a nuisance, and this is done, though by his tenant, he is himself, in contemplation of the common law, guilty of the nuisance equally with his tenant. (See Rosewell v. Prior, 2 Salk. 460; Bush v. Steinman, 1 Bos. Sp Pull. 409.)

Judgment reversed 
      
      
        а) See 2 Chitty's Cr. Law, 39, note (f) Am. ed. 1835; Martin v. Stilwell, (13 John. R. 275;) Commonwealth v. Stewart, (1 Serg. & Rawle, 342.)
     
      
       See Brooks v. The State, (2 Yerg. R. 482,) where it was held that they were indictable.
     