Schweinefuss v. Com.

• Decision Date: 04 June 1965
• Citation: 395 S.W.2d 370
• Court: United States State Supreme Court — District of Kentucky
• Parties: Clement J. SCHWEINEFUSS et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Page 370

395 S.W.2d 370

Clement J. SCHWEINEFUSS et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

June 4, 1965.

As Modified on Denial of Rehearing Nov. 26, 1965.

Jack Howell, Covington, Edward F. Prichard, Jr., Frankfort, for appellant Schweinefuss.

Howell W. Vincent, Stephen McMurtry, Joseph C. Healy, Covington, for appellants Worthingtons.

Robert Matthews, Atty. Gen., Martin Glazer, Charles W. Runyan, Asst. Attys. Gen., Frankfort, for appellees.

DAVIS, Commissioner.

Clement J. Schweinefuss, Robert Worthington, and Janie Worthington were jointly indicted, jointly tried, and all convicted of the offense of 'pandering,' denounced by KRS 436.040, and the offense of 'aiding and abetting prostitution', contrary to the provisions of KRS 436.075(2). The charge under KRS 436.040 is a felony; the latter charge of 'aiding and abetting prostitution' is a misdemeanor. In an effort to minimize confusion, we shall refer to the appellants as 'defendant Schweinefuss,' 'defendant Robert,' and 'defendant Janie.'

The jury's verdict, followed by judgment of the court, declared each of the defendants guilty as to each charge, and fixed their respective punishments as follows:

Defendant Robert: Imprisonment for three years for the felony conviction; fine of $200 plus imprisonment for one year as to the misdemeanor.

Defendant Janie: Imprisonment for three years for the felony conviction; fine of $200 plus imprisonment for one year as to the misdemeanor.

Defendant Schweinefuss: Imprisonment for one year for the felony conviction; fine of $200 plus imprisonment for one year as to the misdemeanor.

The appellants present the following grounds upon which they deem themselves entitled to reversal: (1) It was error to permit the joinder of the felony and misdemeanor charges; (2) the court failed to admonish tentatively accepted jurors upon recess of court; (3) the court erred in refusing a continuance because of inflammatory newspaper articles; (4) damaging evidence was admitted which had been obtained by illegal search and seizure; (5) appellants Robert and Janie Worthington should have had directed verdicts of acquittal as to the misdemeanor charges; (6) evidence relating to conviction of a felony by appellant Robert Worthington should have been excluded; (7) the instructions were confusing, misleading and erroneous; (8) appellant Schweinefuss was prejudiced by court's refusal to grant him a continuance; (9) the court improperly refused an accomplice instruction.

The 'star' witness for the prosecution was Dorothy Evans, who admitted practicing prostitution during the period pertinent to this case. According to Dorothy Evans, she was brought to a residence owned by defendants Robert and Janie Worthington at 128 East Eleventh Street, Covington, on September 23, 1963. The residence building was a house of prostitution, and defendant Janie served in a dual capacity in it--sometimes she acted as its 'madam,' and on rush occasions she worked as a prostitute. Dorothy Evans related that she was taken to the brothel by her 'daddy' (a term she used to identify her pimp). This individual left Dorothy in his automobile outside the house while he negotiated with defendants Robert and Janie. Upon completion of those preliminary details, the 'daddy' brought Dorothy into the house and presented her to defendant Janie; at that initial encounter Dorothy saw neither defendant Robert nor defendant Schweinefuss.

Defendant Janie made some inquiry whether Dorothy had 'worked' (as a prostitute) before, to which Dorothy made negative response. Shortly thereafter, defendant Robert put in his appearance and the tenor of the conversation continued along that line, after which Dorothy was instructed by defendants Robert and Janie 'to get dressed for work.'

Before she had opportunity to do so a 'customer' of the bagnio arrived, whereupon Dorothy was directed by defendants Robert and Janie to take her place in the line with other harlots for inspection and selection. Dorothy was chosen.

The customer's requirements encompassed as area of debauchery which was unfamiliar to Dorothy, so she obtained instructions and demonstrations from defendant Janie prior to entering upon her professional duties. Dorothy was informed, by defendants Janie and Robert, as to the 'going rates' for the various types of 'parties' available to patrons of the house. It was further explained to her that she was to make memoranda incident to her acts of prostitution, and that she should transcribe thereon the amount of money collected from each customer, the time at which she started and finished each transaction, alont with her professional identification as 'Pam.' These chits, together with the money collected, were placed by Dorothy in a bag provided for the purpose; the bag, along with similar receptacles available for the other operatives of the establishment, were neatly hung inside a closet door.

It was also explained that Dorothy's fiscal arrangements were such that at the close of each day's activities (which activities began at 10:00 a. m. and concluded at 4:00 a. m., on each week day--but never on Sunday) the gross proceeds emanating from her dealings with the customers should be divided, on the basis of 50% to the 'house' and 50% to Dorothy. The 'house,' as Dorothy understood it, was comprised of defendants Robert and Janie. From Dorothy's share of the gross earnings the 'house' extracted $2.00 per day as rental. In certain instances, when the customers were fetched to the house by taxi drivers, the share of Dorothy was subjected to a 'bite' of 40% as recompense to the enterprising cabbie.

Dorothy testified that at the close of her first day's work as a prostitute the money in her bag was divided with her by defendant Robert; that on other occasions this division was accomplished by defendant Janie, and on still others by defendant Schweinefuss. She did not say that defendant Schweinefuss was an actual beneficiary of the money, or whether he merely supervised its division according to the foregoing schedule.

Dorothy said that she was under physical restraint which prevented her leaving the house, except at times when she was permitted, under supervision of her 'daddy' or defendant Robert, to visit a beauty shop, and on Sundays, when she visited her small son. Dorothy was not able, with particularity, to specify on just what dates the money division was supervised by the respective defendants. She was able to finally leave the house on October 26, 1963, which was on Saturday. On the following Tuesday, October 29, she called upon the Commonwealth's Attorney and related substantially the sordid account just outlined.

Other witnesses for the prosecution included four 'customers'; none of them identified defendant Schweinefuss or defendant Janie in any way; one of these four witnesses said that he saw defendant Robert there on the occasion of his visit to the house.

Four cab drivers testified for the Commonwealth. Two of these asserted that they merely took their fares to the house and did not participate in the 40% 'cut.' One of these two did not identify any of the defendants as having been present; the other said that defendant Robert was there on one occasion, but that he did not see the other two defendants.

The other two cab drivers admitted that they were recipients of 40% of the prostitute's share paid by the customers whom they had brought to the brothel. One of these said that he had observed defendant Schweinefuss in the house 'once or twice,' and that he had observed defendant Robert 'once or twice' also, but that he had not seen defendant Janie. This witness stated also that defendant Schweinefuss had told the witness that 'the place would be closed.'

The second cab driver who admitted sharing the earnings of the prostitutes recounted that defendant Schweinefuss had handed the witness a card, containing the address of the house, at which time he informed the witness that the witness would receive the 40% share of whatever a prostitute in the house earned from a fare brought there by the witness. This witness said that on four or five occasions he did take passengers to the house, and did receive 40% of the share paid the harlot, although none of the defendants participated in paying him; he obtained the money directly from the woman. This witness said that he saw defendant Schweinefuss in front of the house on one such occasion, but that he had no part in the division of money.

The tax commissioner proved that the property in question is owned by the defendants Robert and Janie; he did not testify to any fact linking defendant Schweinefuss with the premises

The Covington Chief of Police presented evidence of articles obtained by him as the result of a search conducted on October 29, 1963, pursuant to a search warrant issued on the affidavit of Dorothy Evans. The articles included contraceptives, lubricating jelly and other items which Dorothy mentioned as having been used in conducting the house of prostitution.

We think there is no merit in the contention of appellants that it was error to permit the trial of the felony and misdemeanor charges together. RCr 6.18 when considered with RCr 9.12 authorizes this procedure. Appellants assert that they have been placed in double jeopardy because they conceive that the offense of aiding and abetting prostitution is a degree of and included in the offense of pandering. In support of this argument appellants cite Easly v. Commonwealth, Ky., 320 S.W.2d 778; Scarf v. Commonwealth, 195 Ky. 830, 243 S.W. 1034; Hunt v. Commonwealth, Ky., 338 S.W.2d 912, and Arnett v. Commonwealth, 270 Ky. 335, 109 S.W.2d 797. We recognize the rule as announced and followed in those decisions , namely, that two offenses growing out of a single criminal transaction may be separately prosecuted provided that the elements of the offenses are not the same, one of the offenses is not a...