People v. Costanza, 102.

• Decision Date: 07 September 1943
• Docket Number: No. 102.,102.
• Citation: 11 N.W.2d 10,306 Mich. 415
• Parties: PEOPLE v. COSTANZA.
• Court: Michigan Supreme Court

306 Mich. 415

11 N.W.2d 10

PEOPLE

v.COSTANZA.

No. 102.

Supreme Court of Michigan.

Sept. 7, 1943.

Herman Costanza was convicted of knowingly accepting and receiving without consideration money from the proceeds of the earnings of a female engaged in prostitution, and he appeals.

Affirmed.Appeal from Circuit Court, Genesee County; Philip Elliott, judge.

Before the Entire Bench.

Ernest C. Sneed, of Detroit, for appellant.

Herbert J. Rushton, Atty. Gen., of Michigan, and John L. Roach, Pros. Atty. for Genesee County, and Leon A. S. Seidel, Asst. Pros. Atty. for Genesee County, both of Flint, for appellee.

STARR, Justice.

Defendant Herman Costanza was tried by jury and convicted under an information charging that he and one Charles Howard ‘did knowingly accept, receive, levy and appropriate money without consideration from the proceeds of the earnings of * * * a female engaged in prostitution’. Act No. 328, § 457, Pub.Acts 1931, Comp.Laws Supp.1940, § 17115-457 (Stat.Ann. § 28.712). His motion for a new trial was denied, and he was sentenced to a prison term of 4 to 20 years. Having obtained leave, he appeals.

Defendant first contends that his conviction was against the great weight of the evidence. It would serve no purpose to narrate the testimony. Suffice it to say that a self-confessed prostitute called as a witness by the prosecution testified, in substance, that she met the defendant in the city of Flint; that he took her to a hotel and arranged with his codefendant Howard, a bell boy, for her to engage in prostitution; that it was agreed that her earnings should be divided equally between defendant, Howard, and herself; and that she paid to defendant sums of money received from her prostitution. There was also other evidence which the jury might properly have considered as corroborating such testimony. While admitting his acquaintance and association with the witness, defendant expressly denied receiving money from her.

Such conflicting testimony presented a question of fact for jury consideration. The jury, which saw and heard defendant and other witnesses, was best able to determine the credibility of, and the weight to be accorded, their testimony. There was evidence from which the jury could reasonably find defendant Costanza guilty, beyond a reasonable doubt, of the crime charged.

Immediately preceding the trial, on motion of the prosecution, the trial court permitted the names of three additional witnesses to be endorsed upon the information. Upon defendant's objection to such endorsement, the court offered to continue the case to enable him to prepare to meet the testimony of the endorsed witnesses. Such offer was declined, and the trial proceeded. Defendant now alleges that such endorsement constituted reversible error. 3 Comp.Laws 1929, § 17254 (Stat.Ann. § 28.980) provides in part: ‘Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.’

In People v. Blue, 255 Mich. 675, 239 N.W. 361, 362, we said: ‘Under the Code (of criminal procedure), the indorsement of names after filing is wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and to be accorded a...