285 S.W. 739 | Mo. | 1926
Lead Opinion
On November 1, 1923, the Prosecuting Attorney of Jasper County, Missouri, filed in the circuit court of said county a verified information, which, without caption, signature and jurat, reads as follows:
"Roy Coyne, Prosecuting Attorney within and for the County of Jasper, in the State of Missouri, upon his oath, informs the court and charges that on or about ____ day of ____, 1923, in the County of Jasper and State of Missouri, Fannie Ackerman did then and there feloniously and knowingly accept and receive, levy and appropriate a sum of money without consideration from the proceeds of the *222 earnings of Hazel Lang, who was then and there engaged in prostitution at the house of the said Fannie Ackerman, against the statutes in such cases so made and provided; and against the peace and dignity of the State."
A preliminary hearing was had before a justice of the peace in said county. The defendant appeared in the justice's court, where she was arraigned and entered a plea of not guilty. Upon a hearing of the cause, the justice of the peace bound defendant over for her appearance in the circuit court aforesaid to answer said information. The case was tried before a jury, and the latter, on June 18, 1924, returned into court the following verdict:
"We, the jury, find the defendant guilty as charged in the information and we assess her punishment at imprisonment in the penitentiary at four years."
On June 21, 1924, a motion for a new trial was filed and overruled. On June 28, 1924, allocution was granted, judgment rendered, sentence pronounced in conformity with said verdict, and an appeal allowed defendant to this court. Thereafter defendant filed her bill of exceptions in due time, and filed a certified copy of same in this court on November 9, 1925.
No brief or statement has been filed by appellant in this court.
Counsel for the State have made a fair and correct statement of the facts, as shown by the record, which, leaving out the references to the pages of the transcript, reads as follows:
"The evidence offered by the State tended to show that the prosecuting witness. Hazel Lang, who had lived in different places in the State of Kansas, came to Joplin, Missouri, about September 11, 1923. She was then almost eighteen years of age, her next birthday being September 14, 1923. Her father and mother had been killed in a flood in Kansas in April, 1923. When she got to Joplin she went first to the Joplin Hotel. She had only twenty-five dollars and did not know where she could find work. She saw the sign `Waitress Wanted' on the door at 114½ Main Street, and applied there for work. There was a rooming house or hotel on the second floor over a grocery store at the above said address, which hotel was owned by the defendant. The defendant employed the prosecuting witness as a waitress and agreed to pay her five dollars a week. She was to wait on tables, make beds, etc. On the afternoon of September 14, the defendant called Hazel up to her (defendant's) room, and in the presence of the man who was sitting on the bed, told her that she would be run out of the hotel if she did not fill dates with men, and submit to sexual intercourse. At that time defendant took what money Hazel had at the time she came there. The prosecuting witness had sexual intercourse with this man, who, as above stated, was in the room when Hazel was called by the defendant, during all *223 of which time defendant was in the same room, for which she received three dollars. Defendant took two dollars and gave Hazel one dollar. Mrs. Ackerman also showed the prosecuting witness how to keep free of any venereal diseases that might be contracted from the evil practices above mentioned. Defendant told. Hazel that she would have to continue to fill dates, and during the three days she was there, she filled fifteen dates. The acts above mentioned were performed in defendant's room because she thought there would be less suspicion if they remained in that room. Hazel got fifteen dollars as her part of the money she received while she was at said hotel. Defendant took from the earnings at the rate of two dollars to the prosecuting witness's one dollar. When Hazel left on September 14th, she went back to the Joplin Hotel where she stayed for one night. She then went to the Evelyn Rooms, where she stayed until she was sentenced to a term in the industrial school for girls. She was serving that term at the time of the trial. The prosecuting witness contracted a venereal disease during her stay at defendant's hotel. She had never had sexual intercourse before the time heretofore stated.
"The police matron of Jasper County testified that she went to visit Miss Lang at the Evelyn Rooms, and found her sick. The girl at that time told the same story as to what happened at the defendant's hotel that she told at the time of the trial.
"The chief of detectives at Joplin said that he directed the police matron to go to the Evelyn Rooms to visit a sick girl by the name of Hazel Lang. Hazel was brought to the police station.
"The defense, to sustain its case, offered evidence tending to show that the reputation of the defendant for being a moral, hard-working woman was good. There was also some evidence tending to prove that the prosecuting witness never made any complaint of her alleged mis-treatment by the defendant at the time it was said to have happened. The defendant, who took the stand in her own behalf, testified that she was a widow fifty-six years of age; that she operated a hotel at 114 Main Street, Joplin; that the prosecuting witness, Hazel Lang, came to her about September 11th, and asked for work; that she told her she was pretty young to do that kind of work; that Hazel answered she had been following harvest hands all summer. Defendant testified further that the prosecuting witness went to the show with a married man one evening during the time she was at her hotel; that she gave Hazel the money she had been keeping for her, before she left. Mrs. Ackerman denied that she permitted any illicit relations in her house, or that she ever took any money for the same.
"The State in rebuttal showed by Hazel Lang that she never told defendant she had followed harvest hands all summer; that she *224 never had a date to the show with a married man while she was at defendant's house."
In addition to what is heretofore set out, the defendant introduced a number of witnesses who testified as to her good moral character, etc.
The remaining questions involved, as far as necessary, will be considered in the opinion.
1. The defendant has filed no brief in this court. The information is heretofore set out and follows theInformation. language of Section 3253, Revised Statutes 1919, which reads as follows:
"That any person who shall knowingly accept, receive, levy or appropriate any money or other valuable thing, without consideration, from the proceeds of the earnings of any woman engaged in prostitution, shall be deemed guilty of felony, and upon conviction thereof shall be punished by imprisonment for a period not less than two nor more than twenty years." [State v. Howe, 287 Mo. l.c. 8, 9.]
(a) The verdict of the jury heretofore set out, is in proper form and responsive to the issues in the case.
II. No demurrer to the evidence was interposed in this case at the conclusion of same. The testimony has been set out very fully heretofore and need not be repeated. There is abundant substantial evidence offered by the State to sustain the conviction. The testimony of the prosecutrix isSubstantial clear and convincing. She is corroborated as to someEvidence. of the material testimony in the case and the jury were warranted in returning a verdict of conviction, notwithstanding defendant's denials and the evidence as to her good moral character. We accordingly hold that a case was made for the jury. [State v. Howe, 287 Mo. l.c. 8 and following.]
III. The court is charged with error in the motion for a new trial in admitting irrelevant and incompetent evidence offered by the State, and in excluding relevant and competentEvidence: testimony of defendant. Upon an examination of theAdmission: record, we find no errors in respect to either ofRejection. said matters. Aside from the foregoing, the motion does not mention any specific rulings complained of therein.
IV. The court is charged with error in having verbally told the foreman of the jury, that a merit system existed at the state penitentiary of Missouri, where the inmate would beOral given credit of five months out of twelve for goodInstruction. behavior. There is no merit in this assignment. The bill of exceptions shows that the trial court made a statement as to what occurred, as follows: *225
"Shortly after the jury retired they returned into the court room and the foreman asked if they could ask a question, to which question the court replied, `Yes.' Whereupon, the foreman asked if there was a merit system in vogue in the penitentiary. Thereupon the court asked the assistant prosecuting attorney, and the attorney for defendant, if they had any objection to the court answering the question and each replied, `No.' The court thereupon informed the jury there was a merit system, under which a prisoner was allowed credit for good behavior."
The defendant was present in court when the above occurred, and no objection was made in respect to said matter, nor was any exception saved to the action of the court. This assignment is without merit and overruled.
V. It is contended in the foregoing motion that a new trial should have been granted on account of alleged newly discovered evidence. It is claimed that Levi Zumwalt, with whom the prosecutrix said she had sexual intercourse, wouldNewly testify, if present, that defendant did not know ofDiscovered said fact, and that the prosecutrix urged him to keepEvidence. it a secret from her, etc.
The motion for a new trial is supported solely by the affidavit of defendant and no diligence was shown in attempting to secure the testimony of Zumwalt, after the prosecutrix had testified as to the sexual intercourse with him, and to the fact that defendant received two dollars of the three dollars paid her on account of said matter. No statement or affidavit was made by Zumwalt in support of defendant's motion for a new trial. As no diligence was shown to procure the testimony of Zumwalt before the conclusion of the trial, and as no affidavit of Zumwalt was filed in support of the above charge, the court did not abuse its discretion in refusing to sustain the motion for a new trial on account of the alleged testimony of Zumwalt in respect to foregoing matter [State v. Smith, 247 S.W. l.c. 157-8; State v. Loness, 238 S.W. l.c. 114; Mahany v. K.C. Rys. Co., 286 Mo. l.c. 615-16 and cases cited.] After the prosecutrix had testified as above indicated, the defendant asked no continuance to procure the testimony of Zumwalt, and simply desired to use his evidence to impeach the prosecutrix. [Sang v. St. Louis, 262 Mo. l.c. 467.]
This assignment is without merit and overruled.
VI. Appellant likewise asked for a new trial on account of newly discovered evidence of Hershell Russell, etc.
What we have said in the preceding paragraph, applies with equal force to this assignment and must be disposed of in the same way. *226
VII. We have carefully examined the record and every assignment of error in the motion for a new trial. The instructions given properly declared the law, and no objection was made to same, nor is error assigned in the motion for a new trial as to the giving of instructions. The defendant was properly tried, without error, and convicted on substantial evidence. The judgment below is accordingly affirmed. Higbee, C., concurs.
Addendum
The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All of the judges concur.