Harris v. Com.

• Citation: 285 S.W.2d 489
• Parties: James HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Decision Date: 21 October 1955
• Court: United States State Supreme Court (Kentucky)

Page 489

285 S.W.2d 489

James HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 21, 1955.

Rehearing Denied Jan. 27, 1956.

Dailey & Fowler, Frankfort, for appellant.

J. D. Buckman, Jr., Atty. Gen., Zeb A. Stewart, Asst. Atty. Gen., for appellee.

STANLEY, Commissioner.

James Harris has been convicted of the crime of pandering and sentenced to the penitentiary for three years. His appeal presents only technical questions of law.

Harris owned and operated a place called Hy-Dee-Ho Club located in Wilder, Campbell County, which was a bordello, a barroom and cafe. He was also chief of police of the town. The statute, KRS 436.040, comprehensively deals with that branch of commercialized prostitution called pandering. It enumerates eight distinct and separate modes of committing the specific crime or eight particular species of immorality intended to be suppressed. The appellant was convicted of violating subsection (6) of the statute which fixed a penalty of confinement in the penitentary for not less than one nor more than five years of anyone who 'knowingly accepts or appropriates any monty of other thing of value, without lawful consideration, from a prostitute and from the earnings from her prostitutions'.

A reception room and eight bedrooms on the second floor of the establishment were set apart for prostitution and from 4 to 12 women were there nightly. Applicants for places in his dirty business were passed upon by Harris personally. A madam in charge kept a card system on which the earnings of each inmate were entered. A microphone in each room connected with Harris' desk on the first floor enabled him to keep check on the collections. He was there almost every night. The money, which amounted to $400 to $600 a day, was paid over to the madam by the prostitutes. It was divided equally between Harris and the prostitute, except when a taxicab driver procured the patron, he, the procurer, received 40 percent. This summarized evidence was given descriptively and specifically by a former madam and two doorkeepers or sentinels whose duty it was to ring an alarm bell upon the approach of state police officers. A raid on the place by state officers resulted in the arrest of the employees and women and two or three patrons present at the time. This resulted in the indictment, the local law enforcement officers having been blind to the conditions.

The court gave the usual instruction concerning the necessity of corroboration, stating as a matter of law that the employees who testified against the defendant were accomplices. Section 241 of the Criminal Code of Practice provides that there must be other evidence than that of accomplices 'tending to connect the defendant with the commission of the offense'. The appellant contends there was no such corroborative evidence, and that the trial court should have discharged him because of its absence. The authorities relied upon are older cases which held that the corroborative evidence must itself be sufficient to convict. Beginning with Williams v. Commonwealth, 257 Ky. 175, 77 S.W.2d 609, (an opinion delivered in November, 1934) the Code provision has been construed in accordance with its language, namely, that the evidence need only tend to connect the accused with the commission of the crime. Since then we have held the requirement of the rule is met if the corroborative evidence is of such quality that a reasonable and unprejudiced mind could conclude that it tends to establish some fact that links the accused up with the principal fact of the commission of the offense. Price v. Commonwealth, 296 Ky. 144, 176 S.W.2d 271; Cook v. Commonwealth, Ky., 273 S.W.2d 390.

The corroborative evidence in this case is itself almost, if not altogether, complete proof of guilt. The record shows Harris owned and operated the place. A newspaper reporter testified to the conditions and his experiences there. He wrote an article which was published in a Cincinnati newspaper describing the nefarious conditions and activities on the second floor of the club. Harris went to see him and demanded that he should go no further with his articles. A photographer's testimony was to the same effect. A state detective who went there just before the raid related what he had found. Other state police officers on the raid described the set-up of the place and the actions of prostitutes they found there. A taxicab driver testified Harris had asked him and other drivers to bring some business to his club.

Several professional bondsmen testified Harris had procured them to go on the bonds of the employee-accomplices arrested on the raid. The fact of their execution was confirmed by the records. Harris paid the stenographer for reporting their cases. The madam's husband testified that after she had been released from jail following the raid, he saw her hand Harris $350 which she had testified was the proceeds of the previous night. It was not essential to prove the crime of pandering that the accused should receive the money directly from the prostitute. It is sufficient to constitute the offense that the money was paid to a third person (the madam, in this case) for the defendant at his direction or request. 73 C.J.S., Prostitution, § 10.

While there is really only one corroborating witness of the defendant having received the proceeds of the indiscriminate sale by these women of their bodies or as to the actual acceptance by Harris of money from their earnings as charged in the indictment, it is to be remembered that corroboration need not necessarily be by an eyewitness. It may be by evidentiary facts and circumstances. The mass of corroborating evidence heard on this trial relates to relevant and material facts, such as the presence of the prostitutes at the defendant's place of business plying their vocation. This has direct relation to the main fact and exceeds the minimum requirement. This evidence substantiates the testimony of the employees.

In the face of this overwhelming evidence of maintaining highly commercialized and systematized pandering, the defendant availed himself of the privilege granted the most lawless citizen to remain silent. His defense was to impeach his former employees by proving their bad reputation (which was hardly necessary because...