*1 v. Aсkerman. Ackerman, Appellant. The State Fannie Two, 25, Division Receiving- Money. charg- INFORMATION: Prostitution: An information
ing that feloniously “did then accept and there and receive, levy appropriate a sum of without consideration from proceeds the gaged the earnings” female, of the of a “who was then and there en- prostitution defendant, sufficiently charges house оf” said felony by (Sec. 3253, 1919). denounced the statute R. S.
-2. convincing testimony SUFFICIENT EVIDENCE. Clear pros- tending charged, ecutrix to establish the crime and corroborated in some of parts by its material of the of other witnesses and the circumstances case, support guilty; is sufficient evidence to a verdict of where no de- murrer to the evidence was offered at the trial. System. assignment 3. INSTRUCTION: Oral: Mеrit An that the court oral-
ly jury system whereby instructed the that the merit existed in Missouri penitentiary given inmate of the would be credit of five months out of good behavior, merit, twelve for where the record shows that shortly they after the retired returned to the court room and the they question, being foreman asked if ask answered in the system affirmative the court the foreman asked if there was a mеrit vogue penitentiary, thereupon prosecut- the court asked the attorney ing court any objection and counsel the and the answering thereupon question, none, and jury both said informed the was a merit under prisoner good behavior, objection which a made or credit is allowed and no exception saved to court’s statement. Diligence. prosecutiоn 4. NEW for Affidavit: EVIDENCE: In the of defendant having appropriated, consideration, money proceeds prostitution, of another woman an affidavit de- trial, man, fendant attached whom house, motion for new certain prosecutrix testified she had had sexual intercourse in defendant’s testify, present, defendant did not know of said fact urged secret, prosecutrix ground grant- him is no ing trial, a new had testified that defendant had re- paid ceived two of the three dollars course, of said man for such sexual inter- supported solely by and the motion for the affidavit defendant, and no is shown of effort to secure the man’s testified, prosecutrix had after so and defendant asked for no might procure testimony. in order that she his continuance Juris-Cyc. Law, Corpus J., 2560, p. References: Criminal 16 C. Section 2720, p. 1191, 2738, p. 1219, n. n. p. Section Section n. Section Prostitution, Cyc., p. p. n. n. n. 32 New. Appeal Jasper Judge. Circuit Court.—Hon. Grant Emerson, Affirmed. [April Term, Yol. appellant.
Foulke, Bing man & Foulke for wholly place fails to show at (1) The record is defective. It arraignment had, fails *2 any plea or was ever and at time that plea arraign- by any waived formal act ever show defеndant Plea and ar- placed protest. on trial on ment, and that she was raignment omitted under our stat- requisites are that cannot be basic pleading. right of Consti- utes. be debarred the No defendant can IToffman, 3957, 3958; State v. tution, 22; art. R. secs. see. S. is (2) 70 shows that there not sufficient App. Mo. The record 271. presumption of inno- to warrant a conviction. Before reasonable, сlear and cence can be there must be convinc- overcome following particulars: ing wholly fails in the evidence. This case (a) Prosecuting alleges virgin, that she was a that she witness en- of her gaged gave part nefarious prostitution, virginity, although earnings, (b) with her it parts Yet she hand, daylight, people outcry makes no broad a number of she complains of against ravisher, only and the duress is abandoned, shortly (c) might job Im- lose her which she herself body mediately taking step, she submits her after her initial fifteen days, apparent with satisfaction indecency space acts of of two (d) agreed statement that she Against is the was to her. this during employment with character the de- have and maintain fendant, have been complaint was admitted to made witnеss with a man as to the conduct during employment with defendant. The dis- named Osborne coupled employment of said at the close position of defendant Lang and mannerisms of Plazel branded the whole conduct R. unbelievable. S. thing (3) fabrication and see. 4078. as a saying question could ask a erred in court question when it answering question referred and in 4078; Beeclle, v. 180 S. sec. State S. AY. punishmеnt. R. 888. overruling (4) error defendant’s court committed newly evidence, discovered ground because for new trial £he very strongly the evidence would character of favor nature scant verdict, together with the taken unreliable evi- a different Miller, v. 144 part 485; the State. State Mo. dence offered on 77 267. Curtis, Mo. v. State Curtis, Special Attorney-General, and Claud Gentry, As
North T. Attorney-General, respondent. sistant wording (1) follows the of the statute and The information Plowe, (2) AY. 3253; 228 R. S. sec. State v. S. sufficient. charged guilty projter. It found the defendant The verdict was 221 State v. Ackerman. 292 Julin, punishment. State v. the information and assessed the (3) 285 264; Jordan, Mo. v. Mo. 62. committed State newly by failing give a new trial because of discov- largely- granting new trial for this reason ered evidence. The of a and will not be convicted court, within of the trial the discretion showing of an is made that the abuse of that discretion unless Finn, probably change State v. evidence will the results of the trial. 250 Walker, State v. 604; Rippey, 342; Mo. Mo. State v. Smith, 247 S. W. Emmons,
Mo. v. State v. State (a) part showing, There must be a clear Walker, Cushenberry, 157 State v. defendant. State Mo. (b) be sworn to supporting 250'Mo. affidavits should showing why these sought or some made were witnesses to be used Henson, Walker, Mo. obtainable. only goes im- (c) Newly evidence .that discovered Whitsett, 232 Mo. sufficient. State v. peachment of witnesses is not *3 Hewitt, 259 782. Estes, 288; v. S. W. 522; 209 State State v. Mo. in for a new trial
(4) Appellant’s assignment her motion stating jury that there was a verbally in the court erred merit, (a) Such penitentiary, in the state merit light in of instruction. is not considered the verbаl statement Dewitt, Mo. State v. State v. Good, State v. Mo. (b) giving of oral instructions is not
Crofton,
in her motion for a new Knight, (6) S. W. Taylor, 267 State in the admission or substantial fails to disclose record entry in this is no record case (7) There evidence. of exclusion plea. of this is not fatal. and Absence arraignment showing formal (8) properly overruled 262 S. W. Coleman, State v. jury. for the a case made out There demurrer. defendant’s W. 477. Howe, 228 S. Prosecuting Attorney the of 1923, 1, November RAILEY, C . On County, n county said court of a- in circuit Missouri, the filed Jasper signature jurat, and caption, which, without information, verified reads as follows: County Attorney for the of within and Prosecuting “Roy Coyne, oath, informs the court and upon his Missouri, of Jasper, in the State County 1923, in the about--day of-, charges that on then did and there Missouri, Fannie Ackerman Jasper and State of receive, levy appropriate and and accept feloniously proceeds of the consideration a sum of Term, [April Missouri, Vol. Lang, рros Hazel who was then and in against titution Ackerman, at house of said the stat Fannie in utes provided; against peace such cases so made and dignity of the State.”
A preliminary justice peace hearing was had in said before county. court, appeared justice’s where she was arraigned hearing plea guilty. Upon entered a of not cause, ap- justicе peace bound defendant over pearance in the circuit to answer said information. court aforesaid jury, latter, The case was tried June before a following returned into court the verdict: “We, jury, charged find as the informa- tion and imprisonment in punishment peniten- we assess her tiary at years.” four
On a new trial filed overruled. June 28, 1924, On granted, judgment rendered, allocution was sen- pronounced conformity tence appeal and an verdict, said allowed defendant to this Thereafter defendant filed her bill court. exceptions time, copy due and filed a same in this certified court on November
No brief by appellant or statement has been filed in this court. Counsel for the State a fair and correct have made statement of facts, as which, leaving shown the record, out the references to pages of transcript, reads follows:
“The evidence offered prose- State tended to-show cuting witness, Lang, places who had lived different State of Kansas, came to about Joplin, September 11, 1923. eighteen years She was then almost age, birthday being her next September 14, 1923. Her father and mothеr had been killed in a *4 April, got Joplin flood 1923. When Kansas she to she went to Joplin only twenty-five first Hotel. She dollars and did know sign she find work. saw She ‘Waitress Street, Wanted’ on the door Main applied at there for 114% a rooming work. There was house or hotel on the second floor over address, grocery by store at above said which hotel was owned employed prosecuting defendant. witness agreed pay as waitress her to five dollars a week. She was to beds, tables, on September 14, wait make On the afternoon of up (defendant’s) room, defendant called to her Hazel and in the sitting presence bed, man who was her told that she fill be run out of the hotel she did not with men, dates At that submit to intercourse. time defendant sexual took what money prosecuting Hazel had at the time she came there. The wit- man, who, stated, intercourse as above ness sexual was the defendant, during was in when Hazel called all the room Ackerman. re- room, which time was in the for which she same gave ceived three dollars. Defendant took two dollars and Hazel prosecuting one dollar. Ackerman witness how Mrs. also showed the might free contracted from venereal diseases that practices Hazel that she the evil above mentioned. Defendant told dates, days during would have fill the three she to continue to mentioned were there, she filled fifteen dates. The acts above thought performed in she there would be defendant’s room because suspicion got less fifteen dol- remained that room. at said рart money lars as she received while she was her Defendant took at the rate of two dollars hotel. September prosecuting Hazel left witness’s one dollar. When stayed 14th, she for one Joplin she went back to the Hotel where stayed until Evelyn Rooms, where she night. She then went to the girls. industrial school for She she was sentenced to a term the prosecuting the trial. The wit- serving thаt term at the time of stay at defendant’s during her ness contracted a venereal disease hereto- before the time had never had sexual intercourse hotel. She fore stated. Jasper County that she went to matron testified police
“The girl her Lang Evelyn Rooms, found sick. visit Miss happened at defend- story as what told the same at that time trial. she the time of the ant’s hotel thаt told at police directed the Joplin at said that he of detectives “The chief girl sick the name Evelyn to visit a go Rooms matron to police station. brought Lang. of Hazel Hazel was ease, tending to show its offered defense, to sustain “The hard-working being moral, for reputation the defendant that the tending prove also some evidence good. There was woman wаs alleged any complaint of her mis- witness never made prosecuting happened. was said to have the time it treatment behalf, testified that in her own the stand defendant, who took operated a hotel at years age; that she fifty-six a widow she was Lang, witness, Hazel prosecuting Joplin; that the Street, Main work; that she 11th, and asked September to her about came Avork; kind that Hazel young to pretty her she Avas told doi all summer. De- following harvest hands had been answered she witness went to the further testified fendant evening during the time she was at one a married man show with keeping had been Hazel the hotel; gave that she permitted any that she denied Mrs. left. Ackerman before her, any money took that she ever house, in relations illicit *5 the same. told Lang that shе never by shoAved rebuttal “The State summer; all hands harvest had folloAved Term, [April Missouri, of Vol. liad was at to the show with a married man while she
never date ’’ defendant’s house. out, In addition to what is heretofore set the defendant introduced good moral character, who as to her number witnesses testified necessary, questions involved, as far as will be remaining opinion. considered hаs no brief in this court. The informa-
I.The filed language set tion is heretofore out and follows the Information. gec£ion reads as Revised Statutes follows: any person accept, levy
“That or receive, ap who shall propriate any money thing, consideration, other valuable proceeds pros woman titution, felony, upon shall be deemed conviction punishеd imprisonment shall period thereof be not less twenty years.” Howe, than two nor than more [State l. c. 9.]
(a) jury out, in proper The verdict of the heretofore set form responsive to the issues the case. interposed in this II.No demurrer to the evidence case at very fully same. been the conclusion of has set out repeated. not be There is abundant substantial and need heretofore evidence offered the State to sustain conviction. Substantial is clear and convinc Evidence. ing. She is as some of the material corroborated tes timony in returning case were warranted a verdict conviction, notwithstanding defendant’s denials and the evidence good moral accordingly character. Ve hold that case was jury. made for Howe, 287 Mo. l. 8c. and following.] [State charged III.The court is with error in the motion for a new trial in admitting incompetent irrelevant evidence offered State, excluding competent and in relevant and testi- Evidence: mony Upon of defendant. an examination of the rec- Admission: ord, respect Rejection. we find no errors in to either of said mat- ters. foregoing, Aside from thе the motion does not any specific mention complained rulings of therein. charged IV.The court in having verbally told jury, the foreman of the that merit existed state penitentiary where the inmate _ given credit of five Oral good months out twelve be- Instiuction. Savior. There assignment. is no merit in this bill of exceptions shows that the made a statement as to what occurred, as follows: *6 Ackerman. room into “Shortly jury retired returned the after the question, ques- if ask a the foreman asked the asked if replied, Whereupon, ‘Yes.’ foreman tion the court penitentiary. Thereupon in in system vogue the a merit there was attorney, attorney asked assistant the court the objection answering the court defendant, for thereupon informed replied, ‘No.’ The court question and each prisoner under which a was system, was merit allowed a good behavior.” credit for occurred, in court when above present was respect to said nor matter, made was objection was
and no assignment This action of with- court. saved to exception overruled. out merit foregoing in the motion that new trial should is contended
Y. It alleged newly account оf discovered evidence. granted on been have Zumwalt, prose- It is claimed that Levi with whom the Newly intercourse, testify, cutrix said she had sexual Discovered Evidence. fact, n present, that defendant did not know of said prosecutrix urged him secret her, solely by motion supported for a new the affidavit defendant and diligence attempting shown in to secure the testimony of prоsecutrix had testified as to Zumwalt, after the sexual him, with intercourse and to the fact that defendant received two dollars of paid the three her on account said matter. dollars No in support statement affidavit was Zumwalt of defend made procure ant’s motion for a new trial. As no shown testimony trial, of Zumwalt before the conclusion and as charge, support no affidavit of of the above Zumwalt was filed refusing to sustain the court did not abuse its discretion alleged new trial of Zumwalt in on account of respect foregoing Smith, 157-8; matter 247 S. W. l. c. [State Mahany Rys. Loness, v. K. C. Co., 238 S. W. l. c. 615-16 After the l. c. and eases testi cited.] indicated, pro asked no continuance to as above fied simply Zumwalt, and desired to use his evi cure the [Sang Louis, v. St. impeach prosecutrix. l. c. dence to 467.] assignment merit overruled. This trial on of newly account Appellant likewise asked
YI. Russell, of Hershell discovered evidence e.te. paragraph, applies equal preceding said we have What way. disposed the same and must be assignment force to Mo.&emdash;15. op [April Term, Vol. every assign- carefully: VII. examined the record and We havе given ment of in the motion for new trial. The instructions same, objection properly law, declared and no was made nor assigned giving is error trial as of in- the motion a new properly tried, error, structions. The defendant was judgment below is accord- convicted substantial evidence. ingly G., Higbee, concurs. *7 affirmed. foregoing opinion Railey, adopted isC.,
PER CURIAM: —The judges opinion of All of the concur. as the the court. C. P.
Lee Dowis, Dowis, Barton Preston Dowis Junior
Appellants. Two,
Division Implied Warranty: Knowledge SALE OF HOGS: of Disease. In the sale emptor applies, implied of animals the rule of caveat there is no war- ranty is both they applies that are free from rule disease. That seller ignorant may affected, disease the animal and where buyer equally equal op- seller and are informed and have an portunity know that the animal he purchaser, inspeсtion of the animal. If seller the with knows has reason to is afflicted sells disease not known to the upon 'ction, and not he discernable of fraud. Special Purpose: Breeding: Warranty Against Sold for 2._-:-: special purpose Disease. Where animals are for a sold it carries with it a warranty they purpose, warranty they that are fit for that no but that are purpose. implied warranty hogs fit for a different An that were fit for breeding purposes warranty was not a that would not communicate hogs. to other disease Hogs Breeding Purposes: -: 3.-: cation ranty that damages communicated cholera to such other purchased hogs -: Sold for Communi- hogs implied of Cholera to Others. Where were sold under an war- breeding purposes, were fit for and there is goоd breeding buyer purposes, were not cannot recover hogs theory purchased for the death of other those hogs. implied warranty breeding purposes were fit for cannot be construed as a buyer pur- covenant to hold chased harmless from disease which the hogs might purchaser’s hogs. communicate to the other That only by express warranty. be covered Juris-Cyc. Corpus Sales, Cyc., p. p. References: n. n. 95; p. 411, p. p. n. n. n. 64 New. Kansas.City Appeals. Transferred and remanded. Reversed