202 Tenn. 298 | Tenn. | 1957
delivered the opinion of the Court.
Plaintiffs in error were convicted for aiding and abetting, one Elizabeth Ann Laing in prostitution in violation of T.C.A. 39-3501 to 39-3505 inclusive, and the jury fixed the punishment of Jack E. Thorpe at a fine of $250 and 60 days confinement in jail, and that of Vera L. Thorpe at a fine of $250 and 6 months confinement in jail. They have appealed and assigned 17 errors.
We do not find it necessary, however, to discuss all of these assignments. The principal defense, as stated in
The case was tried upon that theory and the Trial Court instructed the jury with reference to accomplices and the necessity for corroboration. We do not find it necessary, however, to discuss the question of corroboration because we think that the Court and counsel were under a misapprehension in, that regard.
Clearly, the offense charged under the above Code sections are misdemeanors because under T.C.A. 39-3505, the penalty provided for is a fine of not less than $50 nor more than $500 or imprisonment in the county jail or workhouse for not less than 60 days nor more than 1 year, or both, in the discretion of the Court. Therefore, under T.C.A. 39-103 these offenses are misdemeanors only.
In Truss v. State, 81 Tenn. 311, it is held that there are no accomplices in misdemeanor cases; therefore corroboration was unnecessary. That case has never been overruled and we see no reason to do so now.
The case as made out by the evidence of the State is as follows: Elizabeth Ann Laing testified that the defendant Jack E. Thorpe came to her and made a proposition that she come to live with him and his wife, Vera
Witness Charles Eusso, a married man, appearing under the compulsion of a subpoena, testified that the first contact he had with Mrs. Laing was when he picked her up in a restaurant and went to a cabin and had sexual intercourse with her for which he paid her $10, the next instance was when he called a certain telephone number and a woman answered the phone and later, since he did not have an automobile but was riding in a truck, Mrs. Thorpe brought Mrs. Laing to a filling station where he was waiting, picked him up and took the two of them to West Memphis, Arkansas, to a motel where the two of
The witness Saul Pearlman, a married man, testifying under compulsion of subpoena, stated that he first knew Mrs. Thorpe who was then Mrs. Dupree, in April or May 1956, which was the year in which this offense is said to have been committed when she was operating a restaurant called the Dungeon in an alley off Front Street in Memphis; that he was in there two or three times; that sometime after that he could not remember whether it was April or May, he received a telephone call and in response to that call he called another number back; that in both instances it was the voice of a woman on the phone but* a different voice on the second call and that he later learned the identity of the second call voice when he met Mrs. Laing, at which time they went across the river to a tourist court where he paid her $50 for her services. He further testified that about the 18th or 19th of June 1956, which was immediately after Mr. and Mrs. Thorpe had been arrested and were out on bond he received a telephone call from a woman who told him to keep his mouth shut; that he reported the matter to the police and that he received another call from the same voice the following day to the same effect.
Witness, H. W. Newman, a married man, testifying under compulsion of subpoena, stated that he went out to the Thorpe residence for the purpose of trying to collect a balance due on a cash register which Mrs. Thorpe had purchased and used before she sold the restaurant, and at that time she remarked to him that
Albert J. White, a married man, testifying under compulsion of subpoena, stated that he is a captain in the Memphis Fire Department and has been with the Department 26% years and is now 58 years old; he has known Mrs. Thorpe or Mrs. Dupree 10 or 12 years; that in response to a number left for him at the Fire Station in the early part of May 1956, he called and talked to Mrs. Thorpe who told him that she had a young lady that she wanted him to meet and that he told her to bring the young lady by day after tomorrow; that Mrs. Thorpe brought Mrs. Laing by there and asa result of the meeting Mrs. Thorpe arranged for another meeting between him and Mrs. Laing, and on that occasion Mrs. Thorpe took Mrs. Laing and him to a motel where he and Mrs. Laing engaged in sexual intercourse for which he paid her $5.
The State elected to stand on the case of this last witness, Albert J. White. There was other evidence introduced such as excessive telephone ringing at the Thorpe home after Mrs. Laing came there but we need not go into detail as to that, the reason for which will appear hereinafter.
The defense made by Mr. and Mrs. Thorpe was that Mrs. Laing who was only 18 years old and was working
Mr. and Mrs. Thorpe obviously made a poor impression on the jury by reason of the fact that it came out in the proof that they had been living together for a year and half holding themselves out as husband and wife •when as a matter of fact, they were not lawfully married until the Monday morning after, their arrest and release
Now some of the other assignments of error may have some merit in them insofar as the sole question of whether or not some phases of the trial were erroneous. In fact we think the Assistant Attorney ■ General was guilty of improper conduct in repeatedly asking questions about collateral matters that did not involve moral turpitude and ordinarily this would in all probability have brought about a reversal of the case on account of its similarity to the situation in Gray v. State, 191 Tenn. 526, 235 S.W.2d 20. We have examined this entire record very carefully, however, and we are of the opinion that none of t]ie matters raised in the other assignments, even if erroneous, were prejudicial, and therefore, under the harmless error statute we will not reverse. It seems perfectly clear to us that the guilt of
We are not unmindful of the fact that Mrs. Laing admitted that she had made false statements under oath on several occasions and that she is a prostitute both cm natural et a la frcmcaise.
The jury, however, were the judges of which side of the case was the true one and they were evidently impressed with the most unusual fact that the above-mentioned men had bared their souls and had taken the risk of the possible results to them of telling the truth.
The judgments below are affirmed.