McDonald v. State , 127 Miss. 402 ( 1921 )

Sykes, P. J.,

delivered the opinion of the court.

Hazel McDonald was indicted, tried, and convicted in the circuit court of Forrest county of unlawfully becoming a vagrant, in that she is a common prostitute.

The testimony for the state Avas to the effect that the defendant was in the taxicab business, and owned and operated one automobile for hire. One of the witnesses testified for the state that he had never known her to do anything wrong; that he had seen her go off with men in cars, both during the day and night; that this was a frequent occurrence; that she always had a chauffeur in the car; that she sometimes rode on the front seat, and sometimes on the back seat.

The testimony shoAVS that the defendant lived in one of the prominent hotels in Hattiesburg. The manager of that hotel testified that sometimes the defendant Avould come to the hotel before six-thirty in the afternoon, and that sometimes she did not come there until eleven or twelve o’clock at night; that it was a frequent occurrence for her to come in at all hours of the night.

Another Avitness testified that he had been employed by her as a chauffeur for about thirty or forty days; that he drove her out frequently with men to picnics and different places; that she would go in the woods frequently with men; sometimes she would ride on the front seat with him, and sometimes on the back seat; that, after driving into the woods, he would stop the car, and go off and leave the car, leaving the defendant and some man in the car; that he would come back to the car whenever they called him; that this was usually done by blowing the horn; that he could not say that that was a frequent occurrence, but that it occurred often; that he stayed away no special length of time, probably sometimes an hour and sometimes as much as two hours; that he frequently drove to Laurel, Gulfport, and other different places; that he never saw her do anything wrong.

After the introduction of this téstimony the state rested, and a motion was made by the defendant to exclude the evidence and instruct the jury to find her not guilty. This motion was overruled.

The husband of the defendant testified that he was a railroad engineer; that he and the defendant were married in 1912; that he and his wife are living together; that because of his work he only visits his wife about once a month; that he sends her money for her support; that he helped her buy the car that she used in the taxicab business ; that she was engaged in this business with his knowledge and consent.

Another witness testified that he had been engaged by the defendant as her chauffeur for about three months; that the defendant ran a regular taxicab — transfer car— business, and that they took passengers wherever they ■wanted to go, to any place in the city or county, or from one town to another; that when he operates the car he never leaves it; that the defendant goes with him lots of times on these trips; that she never got out, and left the car, and went off with a man, to his knowledge.

The defendant testified in her own behalf. She testified to her marriage and exhibited a marriage certificate. She testified that she had been living about two years in Hat-tiesburg; that she was in the taxicab business, and had a license, both city and state. Sbe denied that she bad ever driven into the ypoods with men, and sent the chauffeur away, as testified to by him; that her chauffeurs never left the car when she was in it; that she quite frequently rode in the car with the passengers, in order to keep up with the business. She testified that her husband’s salary had been amply sufficient to take care off her. This is all the testimony in the case. Upon this testimony the jury returned a verdict of guilty.

We are asked to reverse and remand this case, because the testimony is insufficient to sustain the verdict. The state relies for an affirmance upon the case of Peábody v. State, 72 Miss. 104, 17 So. 213. In the Peabody Case the testimony showed that the defendants had no visible means of support, did no work, but habitually arrayed themselves in the evening, and sat on the front steps, or walked on the streets, and solicited men, who went into the house with them, when the doors would be closed.

In this case the defendant was engaged in the taxicab business. She has a husband, who contributes to her support. Therefore she has visible means of support. There is no testimony, direct or circumstantial, in this record, upon which a jury could find that the defendant is a common prostitute. The most damaging testimony is that to the effect that at night she sometimes had the chauffeur drive her with some man out in the woods, and then had the chauffeur leave the car. This may have been an act of indiscretion, but we cannot infer from this record that because of this indiscretion she is a common prostitute. There must be some evidence either direct or circumstantial, to sustain the verdict, and this record fails to present such evidence.

Reversed and remanded.