Madam McGinnis goes to the Oregon Supreme Court

After the October 1909 trial of Hattie McGinnis, the appeal was set for March the following year. The details of the appeal are mostly technical, regarding the way an amended law affects evidence gathered under a previous version of the law.

What is interesting, though, is the way the law, an Oregon statute, seems to have been written to enable vigilante purity groups to exercise quasi-law-enforcement and judicial functions. Everyone was quite open about the use of ordinary citizens to “spy” on others, not merely to tip authorities to the possibility of wrong-doing, but actively to gather evidence that would be used in court.

From the March, 1910 preview of the appeal:

Considerable interest attaches to these cases because of the fact that there has been considerable of a crusade waged against the women by a reform element in the city, and should the law point raised by the defense before the supreme court be upheld it will put a cessation to these crusades as it will practically be impossible to secure evidence which will convict….

When the legislature passed a law declaring it to be unlawful for any person to maintain and conduct a bawdy house, it also passed a rule of evidence that a conviction of the offense might be had by proving the common reputation of the house. Beyond the evidence of a few detectives employed by the reform element to spy on the women for the purpose of securing evidence against them, the greater portion of the evidence adduced, came under this rule of evidence.

At the trial itself, the paper once again underlined the “reform crusade which had swept over the city.” The article went into further detail and outlined the three main questions to decide in the appeal. First, the nature of hearsay and evidence regarding “common reputation.”

Beyond the testimony of a hired detective or two, there was no other direct testimony against the women, and their conviction was secured by the introduction, under a state law on evidence, as to the common reputation of the houses conducted by them.

Additionally, there were two parts of the jury instruction that were problematic, and the attorneys for the McGinnis wanted to use what looks like a form of jury nullification.

Attorney Kaiser, it appears, took occasion in making his appeal to the jury to revert to the Scriptures and in the course of it said: “let him who is without sin first cast a stone at her.” Judge Burnett, in instructing the jury said: “it is not a question for the jury who cast the first stone or any other stone, the jury has nothing to do with that;” and this it is contended made the argument of Attorney Kaiser ridiculous in the eyes of the jury and operated to the prejudice of the defendant.

Another point relied upon by the defense was the judges instruction on the subject of what constitutes reasonable doubt. After giving the ordinary definition of reasonable doubt, he made this addition: “The jury is not entitled to resolve itself into doubting Thomases, who refuse to be convinced by the testimony.” This, it was contended by the defense, had an effect upon the jury which was prejudicial to the defendants, and was reversible error.

Finally, on April 12, 1910, in STATE v. McGINNIS, 56 Or. 163, 108 Pacific 132, the Oregon Supreme Court ruled.

The court disposed of the contested jury instructions quickly.

It is fair to assume that by the argument advanced the Jury were in effect admonished by defendant's counsel that, unless they were guiltless of the particular offense of which she was then being tried, they should follow the declarations of the Saviour, made when a woman was brought before him charged with adultery…The duty of jurors is to determine an issue according to the rules announced by the court. It is not their province to base a verdict on their preconceived notion of justice, their passions, prejudices, or personal experience acquired in violations of the moral code. The instruction correctly started the law and no error was committed in giving it.

More interesting is the discussion of evidence. The court recognized that participants in prostitution are not likely to be caught In flagrante delicto.

It is not to be supposed that the crime of adultery or fornication will be committed in public, or that parties guilty thereof will be taken in the very act.

The court held that “reputation” was admissible. This had, it seems, two parts. The first part concerned the reputation of the house itself – that everyone knew prostitution occurred there. The other part concerned the ownership of the house, as “common fame,” rather than legal documents like a title or lease, established that McGinnis possessed or owned the house.

The court, over objection and exception, permitted witnesses to testify as to the reputation of the defendant's ownership of the house alleged to have been used for immoral purposes….

Our statute does not limit "common fame" to the evil behavior prevailing in a bawdyhouse, and such phrase may be as well employed to establish the other averment of the indictment respecting the ownership of the property or the right to its possession as the general reputation of the building, and, such being the case, no error was committed in admitting the evidence in question…..

And the court concluded that

"Common fame," which serves to establish a character either of a person or thing, was competent evidence.

I have not meaningfully researched the history of “common fame” or its current usages, but some cursory googling suggests it mostly appears in 19th century citations and in religious contexts, especially religious purity laws. Whatever we may think of prostitution, the means here to prosecute it appears to rely dangerously on rumor and reputation rather than on hard evidence. The reporter appears to understand this when he wrote that the appeal threatens a "cessation to these crusades."

After this McGinnis disappears from the city directories. Perhaps she moved away, perhaps she was shunned or otherwise became a non-person in society. Hopefully we’ll find more.*

At any rate, two years later Oswalt West completed the "cleansing" of Peppermint Flat, and drove remaining prostitution activities underground.

(*We do have more on the earlier activities of Hattie McGinnis, so look for more installments on Peppermint Flat.)