5 Ind. App. 306 | Ind. Ct. App. | 1892
Lead Opinion
The appellants, Isaac Winslow and Anna Winslow, were prosecuted under section 1994, R. S. 1881, which provides that “ Whoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness, * * * shall be fined,” etc.
We are required only to determine whether or not the verdict against the appellants was contrary to the evidence.
The appellants did not introduce or offer any evidence. The evidence introduced by the State established beyond interference by this court every material allegation of the indictment, if it can be held that there was any evidence tending to prove that the house of ill-fame kept by the appellants was resorted to for the purpose of prostitution or lewdness. Proof that a house was resorted to for the purpose of such a secret vice will often, if not ordinarily, of necessity be by circumstantial evidence. Whatever inferences men of average intelligence might reasonably draw from facts, the jury may draw from circumstances proved to their satisfaction. It was shown by many witnesses and without any contradiction that it was and for a long time had been a house of ill-fame.
One witness who lived near the house in question testified that he had seen people walking from the street to the door of the house and from the door to the street, most at night time.
Another witness who also lived near the house,who testified that it was a disreputable place and much talked about among the neighbors and a great eye-sore to them, also testified that she had seen people going in and out of the house; that she could not state the names of the men; that there were some women. She gave the names of three women whom she said she had seen go there, and she testified that she was acquainted with the general reputation of these three women ; that the reputation of two of them, named, was not good and the other was suspicious.
Another witness, whose recollection as to the time was not
The jury having inferred that this resorting to the house was for the purpose of prostitution or lewdness, and the court having refused to grant a new trial, we can not disturb the result reached.
The judgment is affirmed.
Crump acker, J., did not take part in the decision of this case.
Dissenting Opinion
Dissenting Opinion.
A careful examination of the record in this case convinces me that the judgment of the court below ought to be reversed, for the reason that the evidence was insufficient to justify a conviction. Verdicts of juries are entitled to respect when they rest upon a solid foundation, but I am not a believer in the sanctity of verdicts to the extent that a wrong may thereby be galvanized into a right. I do not share the veneration that is sometimes manifested and expressed for the judgment of juries. As to whether a verdict is justified or not by the evidence is simply a question of fact. If it is not, then to permit it to stand is a denial of justice. It is a matter of universal knowledge that juries, as a general rule, are unlearned in the law, and without experience in the trial of causes. It is made the duty of the trial judge to instruct them as to matters of law involved in the trial before they retire' for deliberation. After they have formulated their verdict, they are required to return it to him for his approval. If it is contrary to the law or the evidence, it is his duty, if the proper motion is made, to set it aside. It is also his duty to determine the competency of testimony, and thus say what evidence shall or shall not be considered by the jury in making their verdict. Every step that is taken in the case, from the beginning of the trial
That the rule governing a trial in an appellate court is different, concerning the propriety of setting aside verdicts, I admit, and this for substantial reasons. The reason for this difference is well stated in Cox v. State, 49 Ind. 568; Adams v. Stringer, 78 Ind. 175; Buskirk Prac. 237; Dewey v. Chicago, etc., R. R. Co., 31 Iowa, 373. But nowhere, in my opinion, is the rule stated with greater force than by Buskirk, J., in the case of Madison, etc., R. R. Co. v. Taffe, 37 Ind. 361. For this reason I make a liberal quotation from his opinion in the case:
“ The reason of the rule is, that the weight which is due to the testimony of witnesses very greatly depends upon the appearance, manner, and conduct of the witnesses upon the witness stand, their intelligence, their willingness or unwillingness to testify fully and frankly upon all matters within their knowledge, without reference to whether it affects the one party or the other, and whether they are free from passion, prejudice, or undue influence. It is a very easy matter to tell the truth, but it is a very difficult matter to testify falsely and not-be detected. The witness that has nothing to testify about but what he knows, is open, frank, and undisturbed in his manner, while there is an indefinable and indescribable manner and look about a witness who is swearing falsely. The judge, counsel, and jurors have the opportunity of observing all these matters, and, as a general rule, can determine, with great accuracy, whether the witness is telling the truth or a falsehood. When the evidence comes here on paper, we have nothing but the words of the witness, and they are not always correctly taken down. ■ With us, the testimony of an untruthful and unreliable witness, who is unimpeached, has as much weight as the testimony of the best and most reliable man in the community, for we have no means of telling the one from the other. We are deprived
The rule to be applied in courts of last rosort has been formulated and stated in a variety of ways by this court and by the Supreme Court, so that it is not an easy task by any means to state exactly what the rule is, if it can be said that any exists. The rule has been stated and discussed to some extent in the following cases : Hoagland v. Moore, 2 Blackf. 167; Kendall v. Hall, 6 Blackf. 507; Calkins v. Evans, 5 Ind, 441; McVicker v. Pratt, 5 Ind. 450; Cahill v. Vanlaningham, 7 Ind. 540; O’Herrin v. State, 14 Ind. 420; Hollingsworth v. Picking, 24 Ind. 435; Medler v. State, ex rel., 26 Ind. 171; McCaw v. Burk, 31 Ind. 56; Cox v. State, 49 Ind. 568; Hayden v. Cretcher, 75 Ind. 108; Long v. State, 95 Ind. 481; Doles v. State, 97 Ind. 555; Clayton v. State, 100 Ind. 201; Kleespies v. State, 106 Ind. 383; Hud
In a number of the cases above cited, in stating the rule, the Supreme Court has said that “ even a criminal case will not be reversed upon the mere weight of testimony,” and again, “ where there is a conflict in the testimony of witnesses the verdict of a jury will not be disturbed, although it may not seem to be supported by a preponderance of the evidence.” This, in the main, I admit to be correct, for the reason given in the case of Madison, etc., R. R. Co. v. Taffe, supra, above referred to.
In Baker v. State, supra, the opinion was given by the learned judge who gives the opinion of the majority of the court in this case. There the rule was stated to be as follows: “ This court will not reverse upon the evidence a judgment in a criminal action where there is some evidence tending to sustain the verdict on every material point. ” In support of this statement he cites Van Dolsen v. State, supra, and Delhaney v. State, supra. Turning to Van Dolsen v. State, supra, we find the opinion given by the same learned judge. He there states the rule thus: “This court will not reverse a judgment upon the evidence in either a civil or criminal case if the evidence fairly tends to sustain it.” In Delhaney v. State, supra, the rule is stated in exactly the same words. So in Adams v. Stringer, supra. Of course the announcement'of the rule by this court, as well as by the Supreme Court in the cases above cited, does not have the force of an adjudication. It is simply stated as a rule of practice, and being so the rule should be ascertained and stated with some degree of accuracy.
The attorney general, in beginning his brief in this case, states the following as a proposition: “According to the
It is well understood that in order to lawfully convict a person upon a criminal charge, a high grade of proof is required, and it is the duty of courts to see that justice is so administered. It is an anomalous doctrine that holds that before a jury can lawfully convict a defendant his guilt must be proved beyond a reasonable doubt, but if he is so convicted, then after verdict, the conscience of the court will be satisfied with “ some evidence ” or “ any evidence.” Suppose, in a case of homicide, it should appear upon the trial that a man had been murdered by being stabbed with a knife, and that the defendant, who was a man of bad character, had been seen in the neighborhood where the body was found with a knife in his possession, and thus had an opportunity of committing the crime, would this justify a conviction?. Or, suppose a man is tried for stealing a horse, and the evidence should show that the horse was found in his possession
It has frequently been held in criminal cases, where the evidence is circumstantial, that if the circumstances can be explained upon any hypothesis consistent with the innocence of the accused, he should be acquitted. “ This is the true test of circumstantial evidence.” Beavers v. State, 58 Ind. 530.
The defendants in this ease were indicted and prosecuted under section 1994, R. S. 1881. The crime, by the terms
In Betts v. State, 93 Ind. 375, a house of ill-fame is defined to be “a bawdy house, kept for the resort and unlawful commerce of the lewd people of both sexes.” The word “prostitution” implies “the act or practice of prostituting, or offering the body to indiscriminate sexual intercourse.” Cent. Die., Web. Die. The word “ lewd ” is defined to mean “lustful, wanton, lascivious, libidinous.” The word “resorted” implies “ an assembling, or going to, or frequenting in numbers.” People v. Gastro, 75 Mich. 127. Thus it will be seen, in the light of the authorities, that the object of the statute is to prevent the assembling of persons for the purpose of unlawful and indiscriminate sexual intercourse.
In a prosecution under the statute three essential and material facts must be alleged and proved—
1. The existence of a house of ill-fame.
2. That the person charged is the keeper of it, knowing it to be such.
3. That it is resorted to by the sexes for the purpose of prostitution and lewdness.
It is the settled rule in this, as well as in many other States, that the character of the house may be proved by reputation. This doctrine is denied by many courts of great respectability. See Henson v. State, supra; Cadwell v. State, 17 Conn. 467; Toney v. State, 60 Ala. 97; State v. Foley, 45 N. H. 466; Handy v. State, 63 Miss. 207; State v. Boardman, 64 Me. 523. The rule, however, as laid down in Betts v. State, supra, is well supported. See King v. State, 17 Fla. 183; Sylvester v. State, 42 Tex. 496; O’Brien v. People, 28 Mich. 213; State v. Smith, 29 Minn. 193; Territory v. Chart-
Proof of the fact that the house is a house of ill-fame, and that it is kept or occupied by the defendants, will not alone justify a conviction, for the material element that it is resorted to by the sexes for the purpose of prostitution and lewdness would be omitted. If, however, it is proved as a fact that the house is resorted to for the purposes mentioned, and that it is occupied and controlled by the defendant, a. conviction would be warranted, without proving as an independent fact that the house was reputed to be a house of “ ill-fame,” for the essence of the crime would be established.
The indictment'in this case charged the defendant with keeping a house of “ ill-fame ” in the city of Valparaiso, from the 1st of May, 1888, to the 26th day of March, 1890, which house was resorted to for the purpose of prostitution and lewdness by “ persons male and female ” of bad reputation for chastity. At the trial the reputation of the house, as being a house of ill-fame, was sufficiently shown. It was also shown that, during the time mentioned, the defendants lived in the house, but it was not shown that the house was resorted to by persons “ male and female of bad reputation for chastity ” for the “ purpose of prostitution and lewdness.” Of course this fact need not be proved by direct testimony, but if not so proved, then circumstances must be shown from which it can be logically and reasonably inferred, such as lewd and lascivious acts, disorderly conduct,
Upon this point the authorities are numerous and uniform. There was no attempt whatever made to prove the bad character of either of the defendants; they, therefore, stood clothed with the legal presumption of good character. If they were guilty of the crime charged against them, this omission seems remarkable. No improper language, act or conduct upon the part of the defendant, nor of any other person in or about the house was shown, but everything was as quiet and orderly as at any other house in the city as far as the evidence reveals. Eleven witnesses were called by the prosecution ; among others were two night policemen and the mayor and marshal of the city. One witness testified that he occasionally saw persons walking towards the house, but could not tell whether they went inside or not, but this was a year before the trial. Another witness testified that she had seen persons go to the house, and among others three women; that the reputation of two of the women was bad, and that of the other “ suspicious; ” that she had seen Mrs. Jones, whose reputation she said was suspicious, go there between the dates fixed in the indictment, but she did not state when it was she saw the other two go there; whether it was between the dates fixed in the indictment or not, or whether she saw them go there more than once, nor did she describe any suspicious circumstances nor any improper conduct upon the part of any of these women. Another witness testified that she had occasionally seen people go to the house, but could only remember of seeing one man go there
For the reason that the evidence given at the trial, in my opinion, was wholly insufficient to support the verdict, I think the judgment of the court below ought to be reversed.
Filed Oct. 25, 1892.