Clementine v. State

• Decision Date: 31 March 1851
• Parties: ANNA J. CLEMENTINE v. STATE OF MISSOURI.
• Court: Missouri Supreme Court

14 Mo. 112

ANNA J. CLEMENTINE

v.STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

HALL, for Plaintiff. 1. Evidence of the character of the females seen at the house of the defendant was illegal, and should not have been received against the defendant. Character is what the public think and express of, and concerning others, and is full of perils if it is to be received of crime. It would convict an asylum of Magdalens. It is unknown to the law. 2. The general peace and quiet of the neighborhood was not the subject of inquiry in the indictment. If they fomented broils throughout its precincts, could they be punished for it in this proceeding? Why, then, poison the minds of the jury with such evidence? 3. It is always proper and legal to show that a witness testified to the point, against whom he is called. Indifference or want of feeling in the same, are important elements of credibility. The court refused to allow their absence to be shown in case of the witness, Kennerly. Nixon v. Boyse, 4 Leigh. 330. 4. The court erred in refusing to tell the jury that opinions of persons as to the kind of house kept by defendant was no evidence. The point seems plain. 5. Moore and Mullanphy refused to answer certain questions because the answers would tend to disgrace them. The court erred in refusing to instruct the jury that such refusal was no evidence whatever against the defendant. The court in the instructions expressly makes it evidence. 2 Cowen & Hill's Notes, 747. The court erred in refusing to instruct the jury that the motives that indueed persons to go to the defendant's house were no evidence against her.

LACKLAND, for Defendant.

I. The court did not err in overruling the objections to questions asked of O'Blennis and Mower respecting the general character of the inmates of the house for virtue. The character of those who frequent a house charged with being a bawdy-house, is a legitimate subject of inquiry. The indictment charges in so many words “that the defendant caused and procured persons of evil name and fame, and dishonest conversation to come together in her house.” This allegation is a material one, and must be proven by positive testimony as to the character of the inmates or by circumstantial evidence. The court erred in refusing to compel the witness, Mower, to answer the questions put to him by the State. The reason that the court gave, and the reason that he refused, did not in fact exist. He was asked if he was in any other room than the parlor? Whether he saw any men with the women, when he saw them going up stairs to bed? It is difficult for me to see how the answer of the witness to these questions would tend to disgrace him. Suppose he had answered the first question in the affirmative, how could that disgrace him? There is nothing disgraceful that I can see in the act of going into another room than the one he first entered upon entering the house; if it was no disgrace to enter the house at first, and the witness seems not to have looked upon the act of entering the first room as disgraceful, but gets remarkably tender-footed after he gets into the parlor. If the action of the court in regard to this question be correct, then a bawdy-house cannot be proven by those who frequent such places, which would render the statute defining the offense almost nugatory.

II. The second question the court should have compelled the witness to answer. Admitting that it was a disgrace to be seen with the women when they were going up stairs to bed, and also admitting that the law does not compel a witness to answer questions tending to disgrace him when he is upon a direct examination upon a matter material to the issue; even then the court ought to have compelled the witness to answer the last question, because the answer to that question could in nowise implicate him. He was not asked whether he was the man or one of the men, but whether he “saw any man with them.” The answer to this, either affirmatively or negatively, could not implicate him, and therefore was no disgrace. The same reasoning seems to apply to the third question asked Mower, to-wit: “Did you ever stay all night in the house of defendant?” The three questions asked of witness, Bryan Mullanphy, by the State, failed to be answered for the same reasons, and if the court was right in its ruling upon these questions, it amounts to this--that no witness can ever be compelled to say whether he has ever been at a house charged as being a bawdy-house. The principle laid down by the court in the case of Ward v. The State, 2 Mo. R. 120, is believed to be applicable to this question. We now lay down the proposition, that admitting for the sake of argument that the answers to the above questions must necessarily disgrace witnesses, yet if they were upon examination-in-chief, which was the case, and the questions were relevant and material to the issue, a witness cannot refuse to answer for the reason that such answers will disgrace him. 1 Greenl. Ev. p. 613, § 454, and authorities there cited.

III. The court did not err in overruling the objection to the questions asked the witnesses, Charles Kennerly, S. B. Targee and Hugh Miller, as to what effect the establishment of the defendant and the people resorting there had upon the peace and quiet of the neighborhood. Nor did ...