Lutz v. State

Offutt, J., delivered the opinion of the Court. The defendant in each of these two cases was indicted, tried, convicted, and sentenced in the Circuit Court for Anne Arundel County for keeping and maintaining a bawdy house. The indictment filed in each case contained two counts, the first for maintaining a bawdy house, the second for ¹⁴ maintaining a disorderly house, and the two counts of the indictment in the one case are, except for the names, and that the first count in the case against Siegert does not conclude against the statute, identical in form and substance. A demurrer to the indictment in Siegert’s case was overruled, as was a demurrer to each count of the indictment in the case against Anne Lutz.

Her case was tried before the court sitting as a jury, while the case against Siegert was tried by a jury. Siegert was convicted under the first count of the indictment, and in the Lutz case there was a general verdict of guilty. The sole question raised by the appeals is whether either count of the indictment against Lutz, or the first count of the indictment against Siegert, stated an indictable offense. The two cases, while separate and distinct, may therefore be considered together.

Prior to 1890 the offense of keeping a disorderly house was a common law misdemeanor, as prior to 1892 was the offense of keeping a bawdy house, and in each case the punishment was in the discretion of the court. Beard v. State, 74 Md. 132 , 21 A. 700 . Chapter 523 of the Acts of 1890 fixed the punishment for keeping a disorderly house, and chapter 522 of the Acts of 1892 fixed the punishment for keeping a bawdy house. Neither statute defined the offenses to which they respectively related, but left them as at common law.

The law. was in that state when the present statute, chapter 737 of the Acts of 1920, codified as Code, art. 27, secs. 20,. 21 and 22, was adopted. That statute repealed and re-enacted with amendments section 20, then codified as Code, art. 27, sec. 19, and added two additional sections to that article, which are at present codified as sections 21 and 22, the whole described in its title as relating to “Prostitution, Lewdness and Assignation.” The point of the demurrer to the first count of each of the indictments involved in these "appeals apparently is that the statute repealed and superseded the common law offense of keeping a bawdy house, and that the count, ¹⁵ while good at common law, fails to state a violation of the statute, and that, since the common law relating to the maintenance of a bawdy house has been repealed, it states no indictable offense. In Hooper v. Baltimore, 12 Md. 475 , it was said: “In Dwarris on Statutes it is said, at page 695, ‘As a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required.

The law rather infers that the act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced.’ ” That statement of the law was approved in Keech v. Baltimore & Washington R. Co., 17 Md. 45 , and Greenwood v. Greenwood, 28 Md. 386 , and announces an established rule of statutory construction. Harrison v. State, 22 Md. 468 ; Heiskell v. Baltimore, 65 Md. 125 , 4 A. 116 ; 12 C. J. 186; 25 R. C. L. 1054; Sutherland on Stat. Construction, secs. 251, 294. In 25 R. C. L. 1054, it is said that: “It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law. The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language.

In order to hold that a statute has abrogated common law rights existing at the date of its enactment, it must clearly appear that they are repugnant to the act, or the part thereof invoked, that their survival would in effect deprive it of its efficacy and render its provisions nugatory.” Where, however, a statute and the common law are in conflict, the common law yields to the statute to the extent of the inconsistency (Sutherland on Stat. Const. sec. 294; 12 C. J. 186), and a statute which deals with an entire subject-matter is generally construed as abrogating the common law as to that subject. ¹⁶ Prior to the act of 1920, there was in this state no statutory definition of the kind of offensive nuisance of which a bawdy house is a type (Beard v. State, 74 Md. 132 , 21 A. 700 ), so that the question here is whether that statute was so far inconsistent with the common law definition of a bawdy house as to repeal it, or whether the Legislature intended by that statute to deal with all nuisances of that character; for in either event the effect of it would be to supersede the common Jaw as to that particular nuisance. Comparing the statute with the common law definition of a bawdy house, it appears that an essential ingredient of the offense defined by the statute is the “offering or receiving of the body for sexual intercourse for hire” (Code, art. 27, sec. 21) while, at common law, to constitute a bawdy house “it need not be kept for lucre.” Bishop on Cr. Law (9th Ed.) sec. 1086. At common law a necessary element of the offense of keeping a bawdy house was that of “keeping,” that is, of maintaining, some place, whether a house, a boat, a tent, or a vehicle, kept open to the public for licentious commerce (Id., sec. 1083) but under