State v. Olds , 217 Mo. 305 ( 1909 )

GANTT, P. J.

On the 8th day of February, 1908, the prosecuting attorney of Cole county ¡filed an information, duly verified, charging defendant, under section 2201, Revised Statutes 1899, with displaying the sign of an honest occupation upon a common assignation and bawdy house, of which defendant is charged by the information to have been the keeper.

On March the 4th, 1908, defendant made an unsuccessful application for a continuance, and the case was set for April 13, 1908. On that date defendant again applied for a continuance, alleging, as grounds, the absence of several witnesses. The court refused a continuance. Defendant was thereupon arraigned, and pleaded not guilty. A jury was empaneled, and the trial begun.

The State’s evidence consisted largely of the testimony of the female inmates of the house of which defendant was shown to have been in charge, and shows, substantially, that defendant was in possession of the two upper floors of the old City Hotel building at the northwest corner of High and Madison streets, in Jefferson City, Cole County, Missouri; and during defendant’s occupancy of these premises in 1907, and the early part of 1908, a number of women of bad character and reputation roomed in the building, paying defendant a weekly rent for that privilege; that these women occupied their rooms jointly with their male friends, with defendant’s knowledge and consent, charging their visitors for their favors; that defendant “made dates” for the women with male visitors, calling the women into the office when strangers applied for accommodations, officiating at introductions on such occasions and generally supervising arrangements ; that he visited the rooms of the women at 10 p. m., and in case he found a man therein, required [him to depart or to pay “rent” for permission to remain longer; in case the room, even at the hour mentioned, presented certain appearances of disorder, defendant both exacted his “rent,” and also ejected the intruder.

The State’s evidence also showed that defendant knew that these women were prostitutes, plying their trade in his house; that women other than those regularly rooming in the building, and known to defendant to be of evil repute, frequently resorted with their male admirers to defendant’s hostelry, defendant having extended some of them an invitation so to do. Some incriminating letters, written by defendant, showing his knowledge of the character and evil vocation of at least one of the women he harbored, were introduced by the State.

The State’s evidence tended to show that, as charged in the information, several signs with the words “Rooming House” thereon,'were displayed on the exterior of the building mentioned during defendant’s occupancy. At the close of the State’s evidence defendant requested the court to direct the jury to return a verdict of not guilty. The request was denied.

On his part defendant introduced evidence which tended to show that his reputation for truth, honesty, sobriety and morality in and about Ashland, New Bloomfield and Jefferson City was good. Two of defendant’s witnesses restricted their testimony, as to his good reputation, to honesty. Several witnesses for defendant testified that they had been in defendant’s rooming house, and that they observed nothing improper. One of these witnesses testified that he had been attracted to the place by the sign “Rooming House” thereon. Defendant testified that he enforced rules, forbidding male visitors after 10 p. m. Defendant also introduced several witnesses, who testified as to the bad reputation of most of the State’s female witnesses, inmates of defendant’s rooming house. In rebuttal, the State’s evidence tended to show that defendant’s reputation for morality in Ashland and New Bloomfield was bad.

Thereupon, the court instructed the jury, and the jury returned a verdict, assessing defendant’s punish-, ment at four years in the penitentiary. A motion for new trial was filed and overruled, judgment rendered in accordance with the verdict, and defendant has appealed.

I. The information was drawn for a violation of section 2201, Revised Statutes 1899, and is in all respects sufficient to charge an offense under that section.

II. The refusal of a continuance is assigned as error. The application named five witnesses whose testimony was desired. Three of these witnesses were present and testified on the trial. Longley, the fourth witness, was duly subpoenaed for March '4th, 1908, the date for which the trial was first set. -The cause was continued and reset for April 13th, 1908. The service of the subpoena for March 4, 1908, was sufficient to require the attendance of the witness on April 13, 1908, and he could have been attached and compelled to have attended the trial on the last-mentioned date, but no attachment was asked for him. [Secs. 2842 and 2598, R. S. 1899.] The defendant should have asked for an attachment for this witness, and failing to do so, no error was committed in refusing the continuance on account of his absence. [State v. Andrew, 76 Mo. l. c. 103.]

Moreover, Longley was wanted to testify only to the general good character of defendant at Bloomfield, before his removal to Jefferson City, and various other witnesses from that town testified in his behalf on that subject, and his testimony could only have been cumulative, and his absence is no ground for reversing the judgment. [State v. Horn, 209 Mo. l. c. 462.]

As to the remaining witness named in the application for continuance, D. C. Traxler, it appeared he was a traveling salesman. No subpoena had ever been issued for him and his address was entirely unknown on the day of the trial. He apparently had no fixed abode and it was entirely problematical whether defendant would ever be able to locate him and obtain his deposition. Besides, all that was sought from this witness was that he had stopped at this rooming house in the month of January, 1908, and he observed nothing out of the way and that defendant kept a- decent, orderly and honest house. '

The circuit court took the view that it was entirely too uncertain whether defendant would ever be able to locate the witness and get his evidence and that if defendant desired to assume the burden of showing his house was an honest one, many other witnesses must have been able to testify to what he proposed to show by Traxler. We think there was no error in refusing a continuance on such a showing. The granting or refusing a continuance is largely a matter of discretion of the trial court and we find no evidence of any abuse of discretion in refusing this continuance on account of Traxler’s absence. Other witnesses testified to all he could have stated. [State v. Kindred, 148 Mo. 282; State v. Worrell, 25 Mo. 205.]

ILE. The error now assigned .as to the admission of defendant’s letters, written to the witness, Therasa Dashle, at Columbia, Mo., is, that they were irrelevant to the issue on trial, but no such objection was made when they were offered. The only objection then was that they had not been shown to be in defendant’s handwriting. The witness testified she knew his handwriting and had often seen him write. This objection was properly overruled. But the point now made against the letters is equally untenable. They were exceedingly pertinent to the issue and very damaging to defendant. It would serve no good purpose to besmirch the reports of this court with their contents.

IV. The objection that the information did not charge that any decent person was inveigled into this house by the sign displayed by defendant is without merit. It was ruled otherwise in State v. McLaughlin, 160 Mo. 33,

V. As to the alleged improper remarks of the prosecuting attorney, the statements preserved in the bill of exceptions are so meager that we can form little opinion as to their propriety or impropriety, but whatever the context, it is sufficient to say- that the judge who presided at once rebuked the prosecuting attorney and directed the jury to disregard them and warned him not to transgress the law, and that rebuke was not objected to as insufficient. We are clearly of the opinion this judgment should not be reversed on this ground. [State v. McMullin, 170 Mo. l. c. 632; State v. Baker, 209 Mo. l. c. 451.]

Vi. It is insisted- that the circuit court erred in permitting the several female inmates of this so-called ‘‘Rooming House” to testify that defendant hoth solicited and had sexual intercourse with them during the time covered by the information. The State rightly assumed that it was essential to a conviction of the defendant that the State should establish defendant’s knowledge of the character of the women who were' occupying his house and plying their unlawful commerce. This evidence fully established not only that he knew they were living a lewd, lascivious life in his rooms but that he was one of their customers and participating in their vice. No more pertinent and convincing evidence of his knowledge could have been adduced. The objection was properly overruled. [State v. McLaughlin, 160 Mo. l. c. 41.] This ruling' applies to the assignments under points 6, 7 and 8 of the defendant’s brief.

VII. As to the final proposition, that the defendant must have knowledge that his house was used for the purpose of assignation and as a bawdy house, it is sufficient to say that the information directly charged him with conducting such a house and the instructions required the jury to find that he knew of such sexual commerce therein and that he assisted in bringing together in said house persons for such illicit intercourse. [State v. Horn, 83 Mo. App. l. c. 50.]

We have been compelled to go through this entire record and it presents a most flagrant violation of the statute under which this prosecution was brought. No other verdict could have been rendered if the jury believed the overwhelming mass of testimony and it was peculiarly their province to weigh the evidence. The case was carefully tried and we see no substantial error in the record and the judgment is affirmed.

Burgess and Fox, JJ., concur.