State v. Dudley

56 Mo. App. 450 | Mo. Ct. App. | 1894

Rombauer, P. J.

— The information charges the defendant with keeping a common bawdy house. (Revised Statutes, 1889, sec. 3811.) The cause originated before a justice of the peace in Oregon county, where the defendant was found guilty. He thereupon appealed to the circuit court of that county, where he applied for a change'of venue on the ground that the inhabitants of Oregon county were prejudiced against him. His affidavit stated that ‘ ‘the same state of facts as above stated existed in the counties of Howell, Ozark and Shannon.” The defendant thereupon prayed that the venue be changed to some county where the prejudice did not exist. The court changed the venue to Howell county. This order was made on. the day when the application was filed, but the record fails to show any objection to such order on the part of the defendant, cor any exceptions saved. The defendant subsequently appeared before the Howell county circuit court, and went to trial there, so far as the record shows, without any objection. He was tried before a jury, and was convicted. His complaints on this appeal are, that the circuit court of Howell county had no jurisdiction to txy him, and that the evidence was insufficient to warrant his conviction.

The first assignment of error must be overruled.. Notwithstanding defendant’s affidavit and application,, he might have been satisfied with the order as made. If not satisfied, he ought to have objected to the order,, as the court could then have set the same aside. State v. Webb, 74 Mo. 333. Instead of doing so, he appeared in Howell county and announced himself ready for trial. He thereby' again waived irregularities, if there were any, in the order changing the venue. State v. Webb, supra, State v. Elkins, 63 Mo. 159; Stearns v. Railroad, 94 Mo. 317. He could not save an exception, by motion for a new trial in the Howell circuit court, as that court could not allow any bill of exceptions as to matters which transpired in the Oregon circuit. Keen v. Schnedler, 92 Mo. 516. The defendant’s .counsel have filed an affidavit in this court' to the effect that they did object to the Howell circuit court proceeding with the case, but the record in the cause can neither be contradicted nor supplied by ex parte affidavits.

Proceeding to the consideration of the second assignment of error, we find that the evidence adduced on part of the state was to the following effect: The-defendant kept a boarding house axxd a saloon on the boundaxy of the state. The second story of the house-occupied by him was frequented by men of questionable reputation. A woman whose reputation for chastity was notoriously bad, and who went by the name of ‘ ‘Missouri Emory,” was drinking and playing cards with, the callers in the premises upstairs, which contained a. bed, to the joint occupancy of which with herself she occasionally invited pei’sons calling at the house. The-drinks to the secoxxd story were sent up by the defendant from the b'ar below. Several witnesses, when called by the state, refused to answer, when asked. ■about their intercourse with the 'woman in the house.

Evidence to establish the character of a bawdy .house must in most cases be inferential from the nature of the case, and hence it must be permitted to take a wide range. 2 Bishop’s Criminal Practice, sees. 115, 116. In an early ease in this state it was held that the refusal of witnesses to testify, on the ground that answers to questions propounded to them would tend to their own degradation, might be considered by the jury in making up their verdict. Clementine v. State, 14 Mo. 112. In State v. Bean, 21 Mo. 267, an instruction to the jury that, in passing upon the question whether the house was used for the purpose of a bawdy house, they might consider the character of the .inmates and of persons resorting to the same, was ■approved. In State v. Barnard, 64 Mo. 260, the .supreme court held that the fact that, the inmates of a house were prostitutes, strongly conduces to establish the fact that the house was a bawdy house. The state’s ■evidence in this case was opposed only by the testimony of the defendant himself, who stated in answer to the question, whether he “did set up and keep a bawdy house/’ that he did not.

Under these circumstances we would not be warranted in vacating the verdict on the ground that it is unsupported by the evidence.

Judgment affirmed.

All concur.