State v. Pippi

195 P. 556 | Mont. | 1921

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The defendant was convicted of violating the provisions of section 8, Chapter 1, Laws of 1911, and has appealed from an order denying his motion for a new trial.

When this cause was called for trial it appeared that there [1] were not enough names of qualified jurors in jury-box No. 1, and, in the opinion of the court, expressed in a minute entry, a sufficient number could not be obtained without great delay and expense. The clerk was thereupon directed to draw forty names from jury-box No. 3, which was done. Counsel for defendant objected to the trial before a jury thus drawn, and assigns as error the adverse ruling of the court, relying for support of his contention upon the decision in State v. Landry, 29 Mont. 218, 74 Pac. 418. In the Landry Case, however, we went no further than to hold that the court is not authorized to resort to jury-box No. 3 until the emergency mentioned in section 6357, Revised Codes, arises. But whenever that' emergency does arise—whenever the names in jury-box No. 1 have been so depleted that a sufficient number does not remain from which to secure a jury, and it appears further that a sufficient number cannot be procured without great delay or expense—the court is clothed with discretion to, direct the clerk to resort to jury-box No. 3, as was done in this instance. In the absence of any showing of abuse of discretion, the trial court’s ruling will be upheld.

Objection was made to the introduction of any evidence on [2] the ground that Chapter 1, above, is unconstitutional, in that more than one subject is embraced in the title of the Act. The title reads as follows: “An Act to prevent the seduction and prostitution of women and girls, and providing punishment therefor; and to prevent the receipt of money or other valuable thing, from women engaged 'in prostitution, and prescribing punishment therefor; and to repeal sections 8341 and 8342 of the Revised Codes of 1907.” An analysis of the statute discloses that its purpose is to prevent the seduction and prostitution of women and girls, and that nine distinct provisions are 'made for accomplishing that purpose, or, stating the same thing differently, the legislature determined that the commission of any one of .the nine enumerated acts would constitute a violation of the statute and defeat the primary purpose intended to be served.

The several prosecutions authorized by the Act are but the means for the effective enforcement of the statute, and the fact that one of these means is mentioned in the title does not render the Act obnoxious to the provisions of section 23, Article Y, of the Constitution. (State v. McKinney, 29 Mont. 375, 1 Ann. Cas. 579, 74 Pac. 1095.) In Evers v. Hudson, 36 Mont. 135, 92 Pac. 462, this court construed the section above and said: “The object of the constitutional provision now under consideration is not to embarrass honest legislation, but to prevent the vicious practice, which prevailed in states which did not have such inhibitions, of joining in one Act incongruous and unrelated matters. The rule of interpretation now quite generally adopted is that, if all parts of the statutes have a natural connection and can reasonably be said to relate, directly or indirectly, to one general and legitimate subject of legislation, the Act is not open to the charge that it violates this constitutional provision; and this is true no matter how extensively or minutely it deals with the details looking to the accomplishment of the main legislative purpose. (25 Am. & Eng. Ency. of Law, 2d ed., 575.) Or stating the converse of the proposition, it may be said that if, after giving the Act the benefit of all reasonable .doubts, it is apparent that two or more independent and incongruous subjects are embraced in its provisions, the Act will be held to transgress the constitutional provision, and to be void by reason thereof.”

The defendant was charged with having received and [3] accepted money, without consideration, from the earnings of one Marie Champagne, a woman engaged in prostitution. Upon the trial, and over the objection of defendant, the state was permitted to prove that at the same time and place defendant also received and accepted money from the earnings of one Elsie Leonard, a common prostitute.

It is the general rule that upon the trial of one accused of crime, evidence of a distinct and independent offense is not admissible; but the rule is equally well settled that the state may introduce evidence tending to prove a uniform plan or course of action on the part of the accused for the purpose of identification, of disclosing guilty knowledge or criminal intent, and to negative the idea that the particular act charged was merely the result of inadvertence or mistake; and, if such evidence also tends to establish the commission of another offense, it is not for that reason inadmissible. (State v. Newman, 34 Mont. 434, 87 Pac. 462; State v. Hill, 46 Mont. 24, 126 Pac. 41.)

Section 8 of Chapter 1, above, under which this prosecution [4, 5] was conducted, provides that upon the trial'of one accused of violating its provisions the acceptance, receipt, levy or appropriation of money from the earnings of a fallen woman shall be presumptive evidence of lack of consideration. The court so advised the jury in instruction No. 2, and exception is taken by defendant.

It is the general rule in criminal, cases that every presumption in favor of the defendant’s innocence shall be indulged until the evidence establishes his guilt beyond a reasonable doubt; but the rules of evidence are subject to legislative control, except in so far as it is restrained by constitutional limitations (1 Wigmore oh Evidence, sec. 7), and so long as the defendant is secured a fair and impartial trial.

It is not necessary to consider to what extent the lawmakers may go in shifting the burden of proof or in determining that from the proof of one fact a disputable presumption of another may be drawn. Want of consideration is only one element of the crime denounced by the statute under review, and there is not any doubt that in promulgating the rule of evidence found in section 8 above, the legislature was well within the scope of its authority, and did not transgress upon any provision of the Constitution.

The court refused properly to give defendant’s requested [6] instructions 4, 5 and 7. In each instance the testimony of the prosecuting witness was singled out for special comment and consideration. In that respect alone each of the proposed instructions condemns itself. (State v. Schnepel, 23 Mont. 523, 59 Pac. 927; State v. Jones, 32 Mont. 442, 80 Pac. 1095.)

Counsel for appellant insist that if the evidence tends to [7, 8] establish the commission of any crime, it is the crime of robbery, and hot the offense charged in the information, but counsel are mistaken as to the facts, and as well the conclusion to be drawn from them. Aside from the testimony relating to the $90 which the. prosecuting witness insists was taken from her by force, the evidence tends to prove that the defendant received from that witness other sums under an agreement between them [hat the prosecuting witness should occupy a room in defendant’s boarding-house, engage in prostitution, and divide with, him the profits of her shame. Under section 8 of the Act now under review, the guilt of the defendant is not made to depend upon the means employed to secure the money. If he received from the earnings of the prosecuting witness any money without consideration, knowing that she was then engaged in prostitution, the crime denounced by the statute was complete without reference to the question whether payment was made voluntarily or under compulsion. Furthermore, defendant is in no position to complain that he was not charged with and convicted of the more serious offense. This case does not come within the rule announced in State v. Kanakaris, 54 Mont. 180, 169 Pac. 42. There the defendant was charged with the commission of a crime with respect to which no evidence was offered, the only evidence tending to prove a separate and distinct offense.

Complaint is made of remarks of the presiding judge during [9] course of the trial. We have examined each of them, but fail to find any breach of propriety. Many of the remarks were made in connection with rulings favorable to the defendant, and others in an attempt to facilitate the trial. The record discloses that, though the issues were simple and the evidence on the part of the state very brief, nearly five days were consumed in the trial which ought to have been completed in a single day. Much of the time was occupied by counsel for defendant in cross-examination, and, though a wide latitude is to be extended for that purpose, a limit is reached beyond which forbearance ceases to be a virtue. While the court may not by remarks or other conduct prejudice the rights of the defendant, the presiding judge is not merely a monitor, but an important factor in the trial of every cause, whose duty it is to direct the course of proceedings to the end that a speedy, though fair, determination shall be reached. We do not find that any-of the remarks of which complaint is made, or all of them considered together, worked prejudice to any substantial rights of the defendant, or could have done so.

Complaint is also made of remarks by the county attorney in [10] his argument to the jury., The state as well as the'defendant is entitled to be represented, and it is ' within the province of counsel to discuss the evidence in the light most favorable to his contention, and draw therefrom every legitimate inference. So long as lie does not abuse the privilege, he may not be criticised for his zeal. (State v. Tate, 55 Mont. 343, 177 Pac. 243.) We do not think the remarks of the county attorney are open to the objections made.

The crime for which the defendant was tried is purely [11] statutory. The information follows the language of the statute, contains all that is essential to constitute the crime, is sufficient to apprise the accused of the nature of the offense charged, and is not open to the objection that the amount which defendant received from the prosecuting witness is not stated. The statute does not require that it shall be. (State v. Van, 44 Mont. 374, 120 Pac. 479; State v. Copenhaver, 35 Mont. 342, 89 Pac. 61.)

Finally, it is insisted that the state’s case rests upon the [12] uncorroborated testimony of the prosecuting witness, and that her character and the improbability of her story condemn the verdict. In order to secure a conviction in any case arising out of a violation of the white slave law, the state, of necessity, must rely in great part, if not entirely, upon the testimony of the women whose illicit practices give rise to the offenses. A woman is not the less a competent witness because she engages in prostitution (sec. 7890, Rev. Codes), and by statute the jury are made the judges of the credibility of these witnesses and of the weight to be given to their testimony (sec. 8028, Rev. Codes).

Insufficiency of evidence is made a ground of a motion for a [13] new trial, and this court will not hesitate to set aside a conviction based solely upon testimony so inherently incredible that no reasonable mind ought to accept it as true, even though a jury has done so; but, unless we can say that the state’s ease rests upon such testimony only, we cannot substitute our judgment upon the credibility of the witnesses for that of the jury. In this case there are some facts and circumstances which tend to corroborate the testimony of the prosecuting witness, and, though that witness was manifestly evasive 'in her answers given on cross-examination and replied, “I don’t know,” or, “I don’t remember,” to questions, the true answers to which were within her knowledge, we cannot say that her story in its entirety is so inherently improbable as to be unworthy of belief.

The order is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Galen concur.