People v. Lee, 92.

• Citation: 12 N.W.2d 418,307 Mich. 743
• Decision Date: 29 December 1943
• Docket Number: No. 92.,92.
• Parties: PEOPLE v. LEE.
• Court: Supreme Court of Michigan

307 Mich. 743

12 N.W.2d 418

PEOPLE

v.LEE.

No. 92.

Supreme Court of Michigan.

Dec. 29, 1943.

Hattie Lee was convicted of keeping, maintaining or operating a house of ill fame resorted to for purposes of prostitution and lewdness, and she appeals.

Affirmed.Appeal from Circuit Court, Muskegon County; Joseph F. Sanford, Judge.

Before the Entire Bench.

F. E. Wetmore, of Hart, for appellant.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, Daniel J. O'Hara, Asst. Atty. Gen., and Henry L. Beers, Pros. Atty., of Muskegon, for the People.

BUSHNELL, Justice.

Defendant Hattie Lee was arrested, arraigned and examined on a warrant which charged that ‘between July 17th, 1942 and July 18th, 1942,’ she ‘feloniously did keep, maintain or operate a house of ill fame,’ which was ‘resorted to for the purpose of prostitution and lewdness.’ Following her examination, an information was drawn in the same terms. A motion to quash this information was denied and immediately thereafter the people were allowed to file an amended information, which charged the same offense ‘between the 1st day of January, 1939, and the 18th day of July, 1942.’ Defendant then filed another motion to quash on the added ground that the warrant charged an offense on the 17th and 18th days of July, 1942, and that the examination covered these days only and not the period embraced in the amended information. This motion was also denied. Defendant has appealed from the sentence imposed by the court after the jury found her guilty.

Defendant contends that the evidence introduced before the examining magistrate was not sufficient to hold her for trial. The essential elements of the statutory offense (§ 452 of the Michigan Penal Code, Act No. 328, Pub.Acts 1931, Stat.Ann. § 28.707) of keeping a house of ill fame are: (1) That the place in question was a house of ill fame; (2) that the respondent kept or aided in the keeping of the house, and (3) that it was resorted to for the prupose of prostitution and lewdness. People v. Gastro, 75 Mich. 127, 42 N.W. 937;People v. Russell, 110 Mich. 46, 67 N.W. 1099;People v. Wheeler, 142 Mich. 212, 105 N.W. 607; and Gillespie's Michigan Criminal Law and Procedure, § 1725.

The second element of the offense is satisfied by defendant's concession that she was renting the place. That the place was a house of ill fame may be proved by showing its reputation; that it was resorted to for the purposes named may be shown by the testimony of persons having knowledge of this fact. O'Brien v. People, 28 Mich. 213.

James Gilmour, a member of the police force of the City of Muskegon, testified that he had patrolled the neighborhood on and off for about 15 1/2 years, and that the place had the reputation of being a house of ill fame. Peter Rechlitz, a detective sergeant, also testified to the same effect. This was sufficient to satisfy the requirement regarding the reputation of the house in question.

‘In order to sustain a conviction it is not necessary to show actual illicit intercourse. If it is shown that the inmates are prostitutes, and that men frequented and resorted to the place at night, evidence of these and kindred facts may be sufficient to satisfy a jury that the house was resorted to for the purpose of prostitution.’ (Gillespie, § 1725.) See, also, People v. Martin, 176 Mich. 381, 142 N.W. 592.

At the preliminary examination two officers of the Michigan State Police testified that they visited the premises on July 17 and 18, 1942. Their testimony as to what they observed while in the house was sufficient to establish that the place was resorted to for the purpose of prostitution, and there was ample evidence produced before the examining magistrate to require that the defendant be held for trial. See People v. Dellabonda, 265 Mich. 486, 251 N.W. 594.

Defendant contends that the trial judge committed error in allowing the prosecutor to file an amended information ‘changing the charge’ so that it extended back over a period of three years when the examination was confined to specific dates. It is proper to permit an amendment of a date in an information when time is not of the essence of the offense. People v. Clum, 213 Mich. 651,182 N.W. 136, 15 A.L.R. 253, and People v. Vanderjagt, 235 Mich. 620, 209 N.W. 915. The amended information did not introduce a new or different charge and there was no occasion for a new examination or a rearraignment. People v. Sims, 257 Mich. 478, 241 N.W. 247.

Defendant quotes from People v. Dochstader, 274 Mich. 238, 264 N.W. 356, 358, as follows: ‘No information may be filed against any person for any offense until such person shall have had a preliminary examination therefor as provided by law, or shall have waived such examination.’

This is a correct statement of the law, but it is not applicable to the facts of the instant case.

Defendant further argues that the court erred in permitting the prosecutor to file an amended information containing the names of five new witnesses, and to correct the name of one witness thereon during the trial.

The statute (3 Com.Laws 1929, § 17254, Stat.Ann. § 28.980) provides that: ‘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.’ The trial began about 21 days after the amended information was filed. The court did not err in permitting names of five new witnesses to be indorsed on the information. People v. Williams, 118 Mich. 692, 77 N.W. 248;People v. La Panne, 255 Mich. 38, 237 N.W. 38; and People v. McCrea, 303 Mich. 213, 271–275, 6 N.W.2d 489;People v. Costanza, 306 Mich. 415, 11 N.W.2d 10.

During the trial, one Knapp was called to the stand. His name had been indorsed on the information as Charles Knapp; it was discovered that his correct name was ‘Harry’ Knapp, and the court permitted the prosecutor to correct this name on teh information. At the preliminary examination, Officer Gilmour referred to ‘Mr. Charlie Knapp, who lives at the corner of Hall and East Western Avenue.’ As a matter of fact, Harry Knapp lived at this location, ‘right next door to the residence of Hattie Lee.’ This action was within the discretion of the trial judge. It is fundamental that such discretion must be exercised with due regard to the protection of the right of the accused to prepare a defense and be accorded a fair trial. Any claimed error in this respect is to be reviewed upon the showing made in the light of the circumstances. People v. Blue, 255 Mich. 675, 239 N.W. 361. An omission of names of witnesses through inadvertence or oversight does not prevent the indorsement of their names thereafter. People v. Mills, 94 Mich. 630, 54 N.W. 488.

In the instant case, we are satisfied that the people made a proper showing of mistake; that the defendant was not prejudiced by the action of the court, and that such action was not error. Nor did the court abuse its discretion in permitting Harry Knapp to testify. The defendant did not request a continuance and, in the absence of such a request, the trial judge properly assumed that a continuance was not desired. People v. Ranney, 153 Mich. 293, 116 N.W. 999, 19 L.R.A.,N.S., 443.

We are not unmindful of the rule laid down in People v. Tamosaitis, 244 Mich. 258, 221 N.W. 307, 308, that: ‘The right of the defendant to know the witness to be called against him is a substantial one, and the statutory requirement should be faithfully observed by the prosecuting attorney.’

However, under the facts of the case now under consideration, we are satisfied that the defendant was not surprised or prejudiced by the action of the court.

Defendant complains that the court erred in allowing the prosecutor to subpoena certain women and then attempt to prove by police officers that these women were prostitutes. All of these women were in the house at the time of the raid and, as stated in People v. Russell, 110 Mich. 46, 48, 67 N.W. 1099, 1100: ‘It was competent to show that one of the inmates of the house was a female who had borne the reputation of being a common prostitute.’

This matter was considered in People v. Tomczak, 250 Mich. 679, 231 N.W. 63, 64...