44 W. Va. 521 | W. Va. | 1898
Lead Opinion
On the 1st day of April, 1896, judgment was rendered
The indictment, containing three counts, was demurred to as a whole. Was it error to overrule the same ? The first count charges that the defendant, on the 6th day of May, 1895, in the city of Wheeling, did unlawfully, willfully, and knowingly let a certain house there situated, describing it by street, number, etc., to a certain person, giving the name, with the intent that the said person keep the same as a common bawdy house and house of ill fame, and that the said Georgia Frank afterwards used and kept the said house as a house of ill fame, etc. Every material fact necessary to be proved to support a conviction seems to be plainly alleged, with due specifications of time, place, persons, etc., so that the demurrer was properly overruled.
During the prog'ress of the trial it was shown, without contradiction, that, at the time of the alleged offense, Georgia Eaning, alias Georgia Frank, used and kept the house in question under the following instrument (Exhibit A):
“Wheeling, Oct. 18, 1893. This memorandum of agreement, made between Elizabeth Emblem, of the city of Wheeling, county of Ohio, and state of West Virginia, party of the first part, and Georgia Laning, party of the second part, witnesseth : That the party of the first part agrees to sell and grant unto said second party the two-story brick house, situated on the west side of Eoff street, between 18th and 19th streets, in the city of Wheeling, and numbered (1811) eighteen hundred and eleven, for ($6,500.00) six thousand five hundred dollars, with interest at 8 per cent., payable quarterly in advance. Time granted to pay the principal is not to exceed 5 years froin date. The party of the second-is to pay all taxes on said house punctually when due. Should the party of the sec*523 ond part fail to comply with the above article of agreement, the party of the first part, agent or assign, shall enter and take possession of said premises without notice or demand, the same as though this agreement had not been made, and money paid will be forfeited as damages for the wear and tear of said premises. Payments of $300 on the principal can be made quarterly. Title to the property will be retained until two-thirds of the purchase money has been paid, and the residue is secured by a deed of trust to secure the deferred payments due thereon, and in consideration of the above the said Georgia Laning agrees to buy the said part of lot on said terms. The said party of the first part hereby acknowledges the receipt of $5.00 to bind the above contract. Witness our hands and seals this 18th day of October, 1893.
“Elizabeth X Emblem. [Seal.]
mark
“Georgia Laning. [Seal.]”
In consideration of this evidence, the defendants asked the court to give the following instruction, but the court refused to give the same : “Instruction. The court instructs the jury that if they believe from the evidence that the defendants and Georgia Frank made and entered into the contract of sale, introduced in evidence, of the property named in the indictment, and further believe that for one year next preceding the finding of the indictment in this case the said Georgia Frank occupied said property under said contract of sale, then the jury must find the defendants not guilty.” Whether this written instrument is on its face a contract of sale or a contract of lease is a question of law for the court, whose duty it was to construe the instrument and determine its legal effect. Railroad v. McKenna, 13 Lea. 280; 1 Thomp. Trials, § 1199; 2 Pars. Cont. 610, note. And in this 'case it was the duty of the court to tell the jury that this instrument was by its terms and in legal effect a contract of sale, and not a lease, and that if the said Georgia Frank, alias Georgia Lanning, occupied said property under said contract of sale, then the jury must find the defendants not guilty and this', for the plain reason that a sale, even with
Rehearing
ON REHEARING.
This case was argued and submitted on the 20th day of June, 1896, and an opinion was handed down on the 5th day of December, 1896, by the late Judge Holt, reversing- the judgment of the court below, and remanding the cause for a new trial, which was awarded. On the petition of the State, a rehearing was awarded, and the case was again submitted on argument, and the same is now before us again for consideration. As stated by Judge Hqlt in his opinion, which is inserted above for convenience, the indictment was found under section 10, chapter 149, Code, as amended by Acts 1893, c. 8, and contained three counts. The first charg-es that the defendants, on the 6th day of May, 1895, in the county of Ohio and city of Wheeling, did unlawfully, wilfully, and knowingly let a certain house there situate, of theirs, describing its locality, to one Georgia Frank, with the intent that the said Georgia Frank should afterwards, and during the continuance of such lease thereof, there keep and maintain the said house as a common bawdy house and house of ill fame, and during the continuance of such lease thereof, to wit, on the day and year aforesaid, and on divers other days and times between that day and the day of the taking of this inquisition,
During the process of the trial the defendants asked the court to instruct the jury that “if they believed from the evidence that the defendants and Georgia Frank made and entered into the contract of sale introduced in evidence of the property named in the indictment, and further believe that for one year next preceding the finding of the indictment in this case the said Georgia Frank occupied said property under said contract of sale, then the jury must find the defendants not guilty.” It is apparent, at once, that the facts stated in said instruction, if true, were inconsistent with the defendants’ guilt. The contract on its face was manifestly a contract of sale, and, if said Georgia occupied said property as a purchaser, this indictment could not be sustained against the defendants, even if they knowingly sold it to her to be used as a house'of ill fame. This instruction merely called for a construction of said contract. If it was a contract for the sale of the property, the defendants could not be found guilty under the statute. This instruction did not take from the jury the testimony
The last instruction asked for and given at the instance of the state reads as follows: “The court instructs the jury that if they believe, beyond allreasonable doubt, from all the evidence, that the defendant Eliaabeth Emblem committed the offense charged in the indictment, and that the defendant ¥m. T. Emblem knowingly aided and abetted her in committing the said offense by 'assisting her in making the lease or contract, or by collecting the rents, then it is the duty of the jury to find both the defendant Elizabeth Emblem and Wm. T. Emblem guilty.” This instruction was objected to, and the objection overruled; but, in my opinion, the objection should have been sustained, for the reason that said instruction was calculated to mislead the jury, by speaking of the lease or contract, and also of collecting the rents, and was well calculated to cause the jury to believe that the court regarded the contract as a lease, and the payments made thereon as rent. For these reasons the verdict of the jury should be set aside, the judgment reversed, and a new trial awarded.
Concurrence Opinion
(concurring)'.
While I concur in the result reached in the opinion of Judge ENGlish, I cannot concede that the instruction
Dissenting Opinion
(dissenting):
I cannot agree in some points with Judge English’s opinion. The demurrer to the indictment was properly overruled. The first count does not charge both the offense of letting and that of permitting a house to be kept as a house of ill fame, contrary to chapter 8, Acts 1893; they being, it is true, separate offenses. The count charges that the defendants knowingly let a certain house, with intent that a certain woman should keep it as a house of ill fame, and goes on to allege that she did keep it as such, which is surplusage, as the mere letting the house for such purpose makes a complete offense; but it does not chai'ge that the defendants knowingly permitted it to be kept as such house. It charges that the woman actually kept it, not that the defendants knowingly permitted her to do so; since, for aught that appears, the defendants mig-ht not have known that she did, after the letting, keep it. It does not charge this other offense of knowingly permitting the woman to keep it, not containing the words “knowingly permit.” It would not be good for that charge. The second and third counts charge this act in th e language of the statute, and are good.
A special plea that the indictment alleges the offense on 6th day of May, and that the same day the grand jury found the indictment, was rejected. The theory is that, where an indictment is found on the same day the offense is alleged to have been committed, it is fatally defective, notwithstanding the indictment shows it was filed subsequently to the commission of the offense; citing- 10 Am. & Eng-. Enc. Law, 462, and Whart. Cr. PI. & Prac. § 120. The cases cited there do not bear out this proposition. They are where the date of offense was after the finding or the like. They do not hold the unreasonable proposition that,
The instructions of the State were good. It is objected that one said that, if defendants knowingly let or leased the house for use as a house of ill fame, and the woman did so use the house with defendants’ knowledge, the defendants were guilty, whereas there was no evidence tending to show a lease, but a sale, as an instrument between the parties showed a sale, not a lease. But the State, under the evidence, claimed that that was a sham and device to evade the law, by showing a colorable sale, when in fact it was but a letting; that it was no sale, but a letting. That was a jury question. If it was really no sale, but a shadow; if the owner and the woman charged with keeping a house of ill fame did really intend, not a sale, b'ut an occupancy for an illegal purpose, — it was -a lease or letting for that purpose, the language of the paper to the contrary notwithstanding. Though, as between the parties to. it, the writing was undeniably a sale, yet the State was not a party to it, nor bound by it, and could show that it was, as to the State, a mere letting.
The defense com plains that the court refused an instruction that if defendants and the woman keeping the house made the written contract of sale, and for one year before indictment the woman occupied the house under that contract, ‘‘the jury must find the defendants not guilty”; thus utterly ignoring the evidence relied on by the State as tending to show that the occupant was not, in fact, in possession under the sale, but under a letting as between landlord and tenant, as before the writing, and that there was in fact'no sale, and the instruction binding the jury to acquit on the two facts alone of the execution of the writing and the occupation under it. This was wrong. Woodell v. Improvement Co., 38 W. Va. 23, syl. point 3, (17 S. E. 386); Storrs v. Feick, 24 W. Va., 606; Trust Co. v McClellan, 40 W. Va., 412, (21 S. E. 1025). A party is entitled to an instruction in his own language, if correct. Jordan v.
Reversed,