State v. Stone , 30 Ohio App. 2d 49 ( 1971 )

This cause is in this court on appeal from a judgment of the Court of Common Pleas of Ross County upon a verdict of a jury finding defendant guilty of procuring for a female person and the defendant feeling aggrieved thereby filed his notice of appeal and assigned the following errors.

"First assignment of error: The court erred in sustaining a prosecution objection thereby limiting the defendant-appellant's right to impeach the testimony of the chief witness for the prosecution on cross examination.

"Second assignment of error: The court erred in overruling defendant-appellant's motion for a mistrial when prejudicial heresay evidence was put before the jury.

"Third assignment of error: The court erred in overruling the motion to dismiss made by the defendant-appellant at the conclusion of the prosecution's case.

"Fourth assignment of error: The court erred in overruling the motion to dismiss made by the defendant-appellant at the conclusion of the defense case.

"Fifth assignment of error: The court erred in its charge to the jury by instructing the jury on issues not raised by the indictment."

Defendant met Patricia Larkin in a bar on South High Street in Columbus where she worked as a bar girl. Defendant asked her if she wanted to earn more money. She thought it over and said yes. She was given the job of answering a telephone for several days in an apartment provided by defendant which was located in Columbus. Defendant then asked her if she would engage in prostitution. She agreed. The agreement was that she was to charge twenty to twenty-five dollars for her services for entertaining each man. On one day early in her career she went to bed with six men for which she collected one hundred dollars. Defendant and Patricia were to split her earnings fifty-fifty. When it came to splitting her first earnings he took eighty dollars and she received twenty. The difference went to him "for rent."

Patricia testified that on February 13, 1969 defendant requested that she go to the Holiday Inn at Chillicothe, Ohio and engage in prostitution with men he would procure. She arrived at the Holiday Inn and registered as "Miss Sheets." She wrote the license number of defendant's 1966 Cadillac on the registration card. She engaged in prostitution three times that evening and received seventy dollars of which defendant took fifty.

After the third act of prostitution there was a knock on the door and two men entered. After some bargaining on the price, an agreement was reached. Patricia disrobed and was then placed under arrest by Sergeant Harris and Patrolman Augg of the Chillicothe Police Department.

The record shows that Patrolman Robert Detty of the Chillicothe Police Department was attending a gathering honoring the various police officers of that area at the Holiday Inn on that night. Defendant approached Detty who related the following conversation with defendant.

"Q. Would you tell the court please what you saw and observed and heard?

"A. Upstairs unit, like a suite, two rooms divided by a hallway and bath. Mr. Stone approached me. Asked me if Sergeant Harris was working. I told him no. I asked him why. Because I have a girl downstairs. I don't want any trouble.

"Q. If you can repeat that. I'm having difficulty hearing you. I don't know if they can hear over there. If you will raise your voice.

"A. Mr. Stone asked me if Sergeant Harris was working and I said no, and I asked him why. He said he had a girl downstairs and he didn't want any trouble. I asked him who and he gave me the first name of Pat and at that time he left.

"Q. Did you see the defendant John Stone any later that evening?

"A. Yes, sir, a short time later."

When Patricia was taken to the police station and booked defendant provided bail for her.

We now come to consider the first assignment of error. We do not believe that it is well taken. The right of contradiction is ordinarily limited to matters material to the issue, and does not extend to collateral matters. Defendant attempted to cross-examine Patricia on the question as to whether her husband had ever been arrested. The court refused to permit the introduction of this type of evidence. Patricia's husband was not a witness in the case.

The test to be applied in this instance is whether the fact shown by the answer could be shown in evidence for any independent purpose, or whether the cross-examiner would be allowed on his part to prove the matter. If so, then the matter may be contradicted.

In presenting his second assignment of error defendant urges that the court committed prejudicial error in permitting Sergeant Harris to testify concerning the activities of Linda Waple at the Holiday Inn. We believe that the admission of this evidence was proper under R. C. 2945.59. Such is not hearsay evidence.

We will consider the third and fourth assignment of error together. We are of the view that they are not well taken. We have heretofore set forth the evidence surrounding the activities of defendant and Patricia. We believe that the evidence sustains the verdict of the jury.

In State v. DeHass, 10 Ohio St.2d 230, 231, Judge Zimmerman, speaking for the court, said:

"In either a criminal or civil case the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. By the verdict rendered herein, it is apparent that the jury believed the testimony of the prosecuting witness and the corroborating evidence presented by the state, and an examination of the bill of exceptions demonstrates that such evidence was sufficient to support the verdict of guilty, as returned by the jury, and the judgment of the trial court."

The second paragraph of the syllabus states: "A reviewing court may not reverse a judgment of conviction in a criminal case in a trial court, where the record shows that a verdict of guilty was returned by a jury on sufficient evidence and where no prejudicial error occurred in the actual trial of the case or in the instructions given the jury by the court."

If defendant was prejudiced by anything contained in the general charge of the court to the jury, he waived it. The record shows the following dialogue between the trial court and counsel for the prosecution and counsel for the defense at the conclusion of the court's charge.

"Do counsel for the state have anything they would like to add?

"Mr. Ward: We have nothing, your Honor.

"Court: Does counsel for the defendant have anything?

"Mr. Gareff: Nothing, Your Honor."

The gist of defendant's claim in the fifth assignment of error is that the trial court charged on issues not raised in the indictment, i. e., that the indictment did not charge defendant with placing Patricia Larkin in the Holiday Inn.

An inspection of the Bill of Exceptions reveals that defendant stated to Patrolman Robert Detty that he had a girl named Pat downstairs in the Holiday Inn and that defendant did not want to have any trouble with Sergeant Harris. This evidence went into the record without objection. The court charged on it. This was not prejudicial error. Defendant did not preserve his question in the first place. In the second place, defendant was found guilty only of the charge as laid in the indictment. The charge in the indictment was plain and clear and the evidence sustained the charge. From the record, it is plain that the jury was not confused as it did not ask for clarification or further instructions.

Any problem that might have arisen by the giving of that part of the charge which was not predicated upon the offense as described in the indictment inured to the benefit of the defendant as it required more proof than was necessary to sustain the allegations of the indictment and, thus, could only prejudice the state. It is, then, clear that defendant was not prejudiced and, hence this cannot be the basis for granting a new trial. See opinion of Judge O'Neill (now Chief Justice) inState v. Porter, 14 Ohio St.2d 10.

In Killian v. United States (1961), 368 U.S. 231, at page 258 the Supreme Court said:

"We agree that the third paragraph appears inconsistent with the first. However, it is evident that the erroneous third paragraph could not have prejudiced petitioner for it, though inconsistent with the correct first paragraph, exacted a higher standard of proof of affiliation than the law required."

Judge O'Neill, in Snyder v. Stanford, 15 Ohio St.2d 31, at page 41 quoting from the Porter case, said:

"If the general charge, considered as a whole, is not prejudicial to the objecting party, no reversible error results from a misstatement or ambiguity in a portion thereof. SeeCentrello v. Basky, supra; Flynn v. Sharon Steel Corp. (1943),142 Ohio St. 145, 50 N.E.2d 319; State v. Huffman (1936),131 Ohio St. 27, 1 N.E.2d 313; Ochsner v. Cincinnati Traction Co. (1923), 107 Ohio St. 33, 140 N.E. 644; Campbell v. Koerner (App. 1935), 20 Ohio Law Abs. 441; Cincinnati Traction Co. v. Dannenfelser (1914), 3 Ohio App. 220, 20 C. C. (N.S.) 553."

That portion of the charge which defendant claims prejudiced his constitutional rights did not in fact prejudice him, but in truth inured to his benefit and, therefore, reversal of his conviction cannot be predicated on this alleged defect in the charge. See State v. Hashmall, 160 Ohio St. 565.

Judge Stephenson, in his dissent, advances another proposition for reversing the judgment of the trial court, which the majority of this court does not find persuasive. His first claim is that the indictment does not state an offense. At the outset, it should be emphasized that defendant has not in any manner raised this question so we do not know whether or not he will adopt the position of our dissenting colleague. Suffice it to say defendant cannot now claim that he was misled or even prejudiced by something of which he was not aware.

R. C. 2905.18 provides as follows:

"No person shall receive any money or other valuable thing for procuring for, or placing in, a house of prostitution or elsewhere, any female for the purpose of causing her to cohabit with any male person.

"Whoever violates this section shall be fined not more than one thousand dollars and imprisoned not less than three nor more than ten years."

"The indictment, with the omission of formal parts, provides as follows:

"John Stone on the 13th day of February in the year of our Lord one thousand nine hundred sixty nine, at the County of Ross aforesaid, did unlawfully receive money or other valuable thing for procuring for any female, to-wit: Patricia Larkin for the purpose of causing her to cohabit with any male person."

By comparing the two, we find that the indictment was laid in terms of the statute. R. C. 2941.05 is as follows:

"In an indictment or information charging an offense, each count shall contain, and is sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the section of the Revised Code describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged."

Three methods of testing the sufficiency of an indictment are set forth therein. (1) An indictment is sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary concise language. (2) The indictment may be in the words of the section of the Revised Code describing the offense, or (3) in any words sufficient to give the accused notice of the offense with which he is charged.

The grand jury in defining the charge elected method number two, and, having followed the procedure prescribed by the Revised Code of Ohio, it is not necessary to seek a construction based upon federal law as the language contained in R. C.2941.05 is plain, concise and unambiguous in its directives. This being the situation, the language of the indictment met the requirements, also, of numbers 1 and 3 set forth above.

Our colleague makes this statement in his dissent: "Procuring of customers for a prostitute is not proscribed by statute." Procuring of customers for a prostitute is proscribed by statutewhen it is done for the purpose of receiving money or anythingof value. This is the offense for which defendant was indicted, tried and convicted.

R. C. 2941.08 states, in part, as follows:

"An indictment or information is not made invalid, and the trial, judgment, or other proceeding stayed, arrested, or affected * * *

"(K) For other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits."

Our position is that there are no defects in the indictment. However, we wish to make the point that the substantial rights of the defendant upon the merits could not have been prejudiced when he has not raised the point first raised on appeal by our dissenting colleague.

State v. Yudick, 155 Ohio St. 269, at pages 276 and 277 states:

"The record discloses that the accused did not request a bill of particulars. It is contended by his counsel that because of details set forth in the indictment an application for a bill of particulars would have been futile. A plea of not guilty by the accused having been entered, the case is governed by the decision of this court in State v. Hutton, 132 Ohio St. 461,9 N.E.2d 295. The following language in the opinion thereof is pertinent:

"``Therefore, if the defendant felt that the affidavit was not sufficiently definite to inform him as to the charge preferred against him, it was his privilege and duty to seasonably request of the prosecutor or the court a bill of particulars setting up more specifically the nature of the offense charged. This he failed to do. Hence the lower courts were correct in holding that the matter was waived when the defendant proceeded to trial.'"

In any and all events the terms of the statute relating to prostitution so distinctively individuates the offense which it defines that use of such terms charging such offense in the indictment was sufficiently specific to put defendant on notice of the offense with which he was charged. Compare United States v. Williams (C.C.A. 5), 202 F.2d 712; Harris v. UnitedStates (C.C.A. 10), 190 F.2d 503.

Where the sufficiency of the indictment is not raised upon trial, the indictment must be held sufficient unless so defective that it does not by any reasonable construction, charge the offense for which defendant was convicted. Lucas v.United States (C.C.A. 4), 158 F.2d 865, cert. denied330 U.S. 841, rehearing denied 331 U.S. 863; Pifer v United States (C.C.A. 4), 158 F.2d 867.

We find no prejudicial error among those assigned and argued, and, therefore, the judgment of the trial court is affirmed.

Judgment affirmed.

ABELE, P. J., concurs.