State v. Crummitt , 129 W. Va. 366 ( 1946 )

The defendant, Lillian Crummitt, was convicted before a justice of the peace of Harrison County, West Virginia, for the crime of keeping, maintaining and operating a place of prostitution. She appealed to the Criminal Court of Harrison County and upon a verdict of guilty she was sentenced to confinement in jail for one year and to pay a fine of $250.00. The Circuit Court of Harrison County refused to review the judgment of the Criminal Court, and the defendant was granted a writ of error and supersedeas by this Court.

The warrant, dated September 18, 1944, upon which the defendant was arrested and tried, charges that the defendant "* * * on the ____ day of __________, 1944, in the said County, did knowingly and unlawfully keep, maintain and operate a place of prostitution in that certain place, building and house, on the south side of Werninger Street, known as 609 Werninger Street, in the City of Clarksburg, in said County, against the peace and dignity of the State."

The principal witness for the State testified that on September 2, 1944, at about the hour of 9:45 P. M., he walked down Werninger Street and as he passed house No. 609 he saw the defendant and two other women sitting on the porch; that as he walked by the house the defendant asked him where he was going; that he stopped at the fence, which was practically against the porch, and talked for a short time and that he was asked to come in and go upstairs with one of the women for the purpose of prostitution; that he inquired as to the price and was told that it "would be all right"; and that he then excused himself, saying he wanted a drink and would come back, but that he did not return. On cross examination the witness testified that he did not go in the house or on the porch; that no men went in and that he saw no signs of disorder or "signs of prostitution being carried on there". He identified the other two women who were with the defendant at that time, and they, together with the defendant, were arrested at her home on September 19, 1944. The arresting officer testified that at the time he arrested the defendant and the other two women one of the latter remarked, in the presence of the defendant, that "* * * she knew she could not get away with this forever and she expected a raid of this kind." The officer further testified that at the time of the arrests no men were at the house; that no vulgar remarks were made; and that the women went upstairs to change their clothing. Two other witnesses, a deputy sheriff of Harrison County and a member of the detective force of the city, testified that No. 609 Werninger Street had a bad reputation for being a house of prostitution for a period of eight years or more. One of these witnesses testified that he had arrested the defendant for operating a house of prostitution. The foregoing is all the material evidence offered by the State in support of the charge.

The defendant denied all the statements of the principal witness for the State and also denied that she had ever seen him prior to the hearing before the justice of the peace on the instant charge; that neither of the other two women was at her home on September 2, 1944; that at no time had she operated a house of prostitution; that at no time had any person been there, or been solicited to come there, for that purpose; and that she had not been arrested during the time that she resided at that place. On cross examination she admitted having been arrested twice between the years 1938 and 1942, which was prior to her occupancy of 609 Werninger Street.

The other two women arrested with the defendant testified that they were not in Clarksburg on September 2, 1944, but admitted that they were at the house of the defendant on September 19, 1944, the date of their arrest, as overnight guests of the defendant; and that neither had seen the principal witness for the State prior to the hearing before the justice of the peace. The woman alleged to have made the statement with reference to a raid denied that she made that statement.

The proof offered by the State is limited to one instance of solicitation to engage in illicit intercourse; the general bad reputation of the house; and the statement made by one of its alleged inmates, from which statement an inference may be drawn amounting to a confession of some criminal act.

The defendant assigns a number of errors, but a discussion of the sufficiency of the warrant on which she was tried, and the evidence on which she was convicted, is sufficient to dispose of all assignments.

The contention of the defendant is that the warrant is bad and that her motion to quash it should have been sustained on the following grounds: (a) That it alleges conclusions rather than facts; (b) that it fails to contain the phrase incorporated in the statute "for the purpose" of prostitution; and (c) that the warrant does not sufficiently describe the offense to enable her to avail herself of the judgment in the event of a subsequent prosecution.

The pertinent parts of the statute alleged to have been violated by the defendant are: "Any person who shall keep, set up, maintain or operate any house, place, building, * * * other structure, * * * for the purpose of prostitution, lewdness, or assignation; * * * shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred dollars and not to exceed two hundred fifty dollars, * *". Chapter 30, Article 8, Section 5, Acts of the Legislature, 1943, Regular Session. Another part of the same statute confers concurrent jurisdiction on justices of the peace to try persons charged with its violation.

A warrant charging an offense of which a justice of the peace has jurisdiction to try and pronounce judgment stands in place of a presentment or an indictment and the offense must be charged with the same particularity as in a presentment or an indictment. State v. Harr, 77 W. Va. 637, 88 S.E. 44. As indicative of the frequent application of the rule announced in the Harr case, see State v. Knight, 119 W. Va. 6, 191 S.E. 845;O'Donnell v. Shipman, 113 W. Va. 274, 167 S.E. 700;Hartford v. Davis, 107 W. Va. 693, 150 S.E. 141; and State v.Harless, 105 W. Va. 480, 143 S.E. 151. That rule is applicable to this case.

Prior to the adoption of the Code in 1931, the statute with reference to the offense here charged read: "If any person keeps a house of ill fame he shall be guilty of a misdemeanor and fined not exceeding two hundred dollars, and may, at the discretion of the court, be confined in the county jail not exceeding one year * * *". Section 10, Chapter 149, Code, 1923. The offense was not defined in the statute, and this Court in dealing with the statute held that resort must be had to the common law for a definition of such house. State v. Pyles,86 W. Va. 636, 104 S.E. 100; State v. Badda, 97 W. Va. 417,125 S.E. 159. The present statute defines one kind of house of ill fame, but, being penal, the common law definition cannot be judicially enlarged. State v. Pyles, 86 W. Va. 636,104 S.E. 100. In the Badda case this Court quoted with approval two definitions of a house of ill fame: " 'A bawdy-house (or house of ill fame, as it is sometimes called) is a house kept for the reception of persons who choose to resort to it for the purpose of illicit sexual intercourse, and is indictable at common law.' 2 Wharton's Criminal Law, (11th Ed.), page 1883. 'A bawdy-house is any place, whether of habitation or temporary sojourn, kept open to the public either generally or under restrictions, for licentious commerce between the sexes. House of ill-fame is another name for the same thing.' 1 Bishop on Criminal Law, (9th Ed.), 807." A house kept for public resort in which acts of prostitution are committed may also be described as a house of ill fame. "Bawdy house", "brothel" and "house of prostitution" are practically synonymous. The legislature in enacting Chapter 30, Article 8, Section 5 (a), Acts, 1943, Regular Session, describes an offense similar to that described in Section 10, Chapter 149, Code, 1923. The allegation in the warrant charging the defendant with keeping, maintaining and operating a place of prostitution implies that acts of lewdness and prostitution were committed in the house described in the warrant. State v. Jones, 53 W. Va. 613, 45 S.E. 916. The warrant does not allege conclusions and is not objectionable for that reason.

The warrant is dated September 18, 1944, and it charges that the defendant "on the ____ day of __________, 1944," kept, maintained and operated a place of prostitution. It sufficiently alleges that the offense was committed within one year prior to the date of the warrant. State v. Thompson, 26 W. Va. 149. Generally an allegation of time in a warrant or an indictment charging a misdemeanor is unnecessary, except to show that the offense is not barred by the statute of limitations and that it was committed prior to the issuance of the warrant or the finding of the indictment.

In charging a statutory offense, it is unnecessary to follow the exact words of the statute. A warrant charging such offense is sufficient if it substantially follows the language of the statute, or charges the offense in words equivalent to, or of the same import as, the words in the statute, if it fully informs the defendant of the particular offense charged and the court can determine the statute on which the charge is founded.State v. Jones, 53 W. Va. 613, 45 S.E. 916; State v. Wimmer, 117 W. Va. 498, 186 S.E. 133; State v. Nazel, 109 W. Va. 617,156 S.E. 45; State v. Brown, 101 W. Va. 160, 132 S.E. 366;State v. Hudson, 128 W. Va. 655, 37 S.E.2d 553; 27 Am. Jur., Indictments and Informations, Section 101; and 27 C.J.S., Disorderly Houses, Section 11 (b). Even if it should be implied that keeping a "house of prostitution" is not synonymous with keeping a "house for the purpose of prostitution", it is nevertheless plain that the warrant in that respect substantially follows the provisions of the statute, and that no reasonable or practical distinction can be drawn between the two phrases.

This defendant is charged with a crime created and described by statute. The charge laid in the warrant substantially follows the language of the statute. The words "kept, maintained and operated", as used in the statute, import continuity of action and conduct, and, as used in the warrant, they supply the continuing element necessary for the description of the offense. Chapter 30, Article 8, Section 5, Acts of the Legislature, 1943, Regular Session.

Code, 62-9-21, provides a form of indictment for keeping a house of ill fame which does not include an allegation of a formal continuando. The enactment of that statute antedates the passage of the Act of the Legislature of 1943, Regular Session, upon which this prosecution is based. Although this earlier statute is not controlling, it may be considered as persuasive authority for the conclusion that the warrant in this proceeding, which omits such an express allegation, meets the statutory and constitutional requisites of a valid warrant.

There are cases which hold that the allegation of a formalcontinuando is not necessary in an indictment or an information which charges a continuing offense. See Spencer v. State, (Criminal Court of Appeals of Oklahoma), 169 P. 270; Jackson v.State, 31 Ala. App. 212, 14 So. 2d 593; 27 Am. Jur., Indictments and Informations, Section 72. Though due recognition should be accorded to such decisions, the pertinent provisions of the statute, Chapter 30, Article 8, Section 5 (a), Acts of the Legislature of 1943, Regular Session, properly construed and applied, justify the conclusion that the offense charged in the warrant is adequately stated and described. For this reason the motion to quash the warrant was properly overruled.

The sufficiency of the evidence to support the verdict of the jury is challenged. Aside from the reputation of the house in which the defendant lived, her arrest twice previously and payment of a fine, and the statement allegedly made by one of the women arrested with her relative to a raid, the only evidence introduced by the State shows one instance of solicitation to engage in illicit sexual intercourse. In cases of this kind proof of the corpus delicti may be had by circumstantial evidence; but, "To convict of crime by circumstantial evidence, it is an inflexible rule that thecorpus delicti be first proven by direct evidence, or by cogent and irresistible grounds of presumption." State v. Harrison,98 W. Va. 227, 127 S.E. 55. The same principle was approved by this Court in the case of State v. Koontz, 117 W. Va. 35,183 S.E. 680, wherein Judge Maxwell, in speaking for the Court, quoted with approval a statement from Will's Law of Circumstantial Evidence, page 392: " '* * * No universal and invariable rule, therefore, can be laid down; and every case must depend upon its own particular circumstances; and, as in all other cases, the corpus delicti must be proved by the best evidence which is capable of being adduced, and such an amount and combination of relevant facts, whether direct or circumstantial, as establish the imputed guilt to a moral certainty, and to the exclusion of every other reasonable hypothesis.' " See State v. Gill, 101 W. Va. 242, 132 S.E. 490.

A single act of sexual intercourse does not constitute the house, in which the defendant lived, a house of prostitution.Wilson v. State, 17 Ala. App. 307, 84 So. 783. Neither does one instance of solicitation have that effect. Evidence of the reputation of the house standing alone is not sufficient to sustain a conviction. Pirkle v. The State,68 Ga. App. 52, 22 S.E.2d 104. The reputation of the defendant alone is insufficient to sustain a verdict of guilty. People v.Belcastro, 356 Ill. 144, 190 N.E. 301. Evidence of the reputation of the house, the payment by the defendant of a fine, the alleged statement of one of the women, and one instance of solicitation to engage in illicit sexual intercourse do not, when considered together, amount to the high degree of proof required to establish the corpus delicti.State v. Harrison, 98 W. Va. 227, 127 S.E. 55; State v. Koontz, 117 W. Va. 35, 183 S.E. 680. Though the evidence of the State shows strong circumstances, they do not reach the degree of certainty required. Upon consideration of all the evidence adduced by the State, it is clear that the verdict is not sustained by the proof. A conviction based on mere suspicion, however strong, of the guilt of the accused, can not stand. The burden rests upon the State to prove the guilt of one accused of crime not merely by a preponderance of the evidence, but by evidence sufficient to establish his guilt beyond a reasonable doubt. This requirement has not been met or satisfied in this case, and the verdict of the jury, being without sufficient evidence to support it, should have been set aside by the trial court. State v. Hudson, 128 W. Va. 655,37 S.E.2d 553.

The case of State v. Johnson, 189 Minn. 546, 250 N.W. 366, cited by the State, has been examined and considered; but it is not regarded as a decision of persuasive force or an authority to be followed by this Court.

In as much as the evidence is not sufficient to support the verdict of guilty, the judgments of the Circuit and Criminal Courts of Harrison County are reversed, the verdict is set aside, and the defendant is awarded a new trial.

Judgments reversed; verdict set aside; new trial awarded.