Konopisos v. State
| Decision Date | 01 December 1919 |
| Docket Number | 934 |
| Citation | 185 P. 355,26 Wyo. 350 |
| Parties | KONOPISOS v. STATE |
| Court | Wyoming Supreme Court |
ERROR to District Court, Platte County, HON. WILLIAM C. MENTZER Judge.
Tony Konopisos was convicted of keeping a house of ill fame, and brings error.
Reversed.
Oscar O. Natwick and Marion A. Kline, for plaintiff in error.
The evidence was insufficient to prove the elements of the offense; the crime is statutory, and the essential elements are, 1st, that the house in question was a house of ill fame 2nd, that it was resorted to for prostitution, 3rd, that it was kept by defendant at, or about the time mentioned in the information (People v. Russell, 67 N.W. 1099; People v. Wheeler, 105 N.W. 609; State v Harberlee, 33 N.W. 462; Drake v. State, 17 N.W. 117; People v. Pinkerton, 44 N.W. 181; People v. Gastro, 42 N.W. 939); extra-judicial statements and admissions of defendant are insufficient to establish the corpus delicti (People v. Simonson, 40 P. 440; Wistrand v. People, 72 N.E. 748; Grey v. Com., 101 Pa. 380; U. S. v. Boese, 46 F. 917). The court erred in allowing the prosecuting attorney to ask defendant whether he had not been convicted of being a pimp, and compelling him to answer the question. The verdict and judgment are unsupported by any evidence; the conviction was for a misdemeanor that had already been tried in Justice Court; the record shows that defendant was tried for the same offense before a justice of the peace, who rendered a judgment of conviction from which an appeal was taken to the district court; the district court was without jurisdiction to hear and determine the case on original information that was already pending before it on appeal from a prior conviction in justice court; this court should set aside the second conviction for want of jurisdiction.
D. A. Preston, Attorney General, for defendant in error.
The record does show a former conviction for the same offense in Justice Court, which was pending on appeal there at the time of this conviction; general assignment that the judgment is contrary to law is insufficient (Miller v. State, 3 Wyo. 657); defendant admitted his guilt in the presence of witnesses; this was sufficient to sustain conviction; there being some evidence to sustain conviction, it will not be set aside on appeal; errors of law must be specified with particularity; this has not been done (Foster v. State, 59 Ind. 481; Edmonds v. State, 34 Ark. 734; Sweet v. State, 90 Ga. 315; Benson v. State, 119 Ind. 483); the errors complained of are too vague and indefinite for consideration by this court; the assignment of error on account of a former conviction in Justice Court, comes too late when raised for the first time on motion for a new trial.
The defendant was convicted by the verdict of a jury "of keeping a house of ill fame resorted to for the purpose of prostitution or lewdness". A motion for a new trial was duly made and denied, and the case is brought here on error.
The alleged errors, while eleven in number, may all be considered under the following heads:
1. That there was no competent evidence introduced to prove the necessary elements of the alleged offense.
2. That alleged admissions or extra judicial confessions of the defendant were improperly admitted in evidence without any other evidence of the corpus delicti.
3. That certain other evidence was wrongfully admitted on behalf of the prosecution.
4. There being an appeal pending in the same court from a conviction before a justice of the peace of the identical offense charged, the court could not assume and exercise original, but only appellate jurisdiction.
Before the trial in the court below, the County and Prosecuting Attorney filed a motion to nolle pros the information on the ground that the evidence obtained by the prosecution was insufficient to convict the defendant of the crime charged. This motion was denied by the court, and at the argument of the case in this court the Attorney General did not combat the position of the defendant but confessed the errors complained of, and deplored the fact that his time and the time of this court should be taken up by such cases which should have been dismissed in the lower court.
The statute under which the information in this case was drawn is section 5909 of the Wyoming Compiled Statutes of 1910, and is as follows:
"Whoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness; or knowingly lets a house to be so kept; or knowingly permits a house which he has let to be so kept, shall be fined not more than one hundred dollars, to which may be added imprisonment in the county jail not more than six months."
This is a statutory offense and the essential elements that the state must prove before conviction can be had are:
1. That the house in question is a house of ill-fame, --that is, that it is a house of bad repute or evil notoriety.
2. That it is resorted to for the purpose of prostitution or lewdness.
3. That the defendant kept the house, aided in keeping it, or was interested in it. (State v. Haberle, 72 Iowa 138, 33 N.W. 461; People v. Pinkerton, 79 Mich. 110, 44 N.W. 180; Drake v. State, 14 Neb. 535, 17 N.W. 117; People v. Russell, 110 Mich. 46, 67 N.W. 1099; People v. Wheeler, 142 Mich. 212, 105 N.W. 607.)
The evidence on behalf of the state consisted of the testimony of the prosecuting witness, Daniel S. McCorkle, and his wife Mrs. McCorkle, who testified to a lengthy conversation with the defendant in the front part of his saloon at Hartville, Platte County, Wyoming, the premises alleged to be kept by the defendant as a house of ill-fame, in which conversation certain statements of the defendant are claimed to be admissions of guilt of the offense charged, and in addition the testimony of one Manual Stamnolajais, who accompanied the McCorkles on the occasion of the conversation. While the conversation is testified to as extending over an hour, --it seems that the McCorkles went to the saloon to persuade the defendant to send away girls they claimed he was keeping in connection with his saloon, --the substance of the alleged admissions is that the defendant said he was keeping the girls as a protection to the decent women of the community and they were his girls. McCorkle also testified that during the conversation, which was in the front part of the saloon, only separated by screen doors from the rest of the saloon, he heard a woman talking, "a distinctly feminine voice" in the back part of the saloon, and Stamnolajais testified that he saw one girl in the back of the saloon at the time of...
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Thompson v. State
...(Mich.) 167 N.W. 1001. The corpus delicti was not established. It cannot be established by extra judicial confessions. Konopisos v. State, 26 Wyo. 350. If circumstances can be reconciled with the theory that some other person may have done the act, the defendant should not be convicted. Gar......
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