State Of West Va. v. Crummitt

• Decision Date: 10 December 1946
• Docket Number: No. 9774,9774
• Citation: 129 W.Va. 366
• Parties: State Of West Virginia v. Lillian Crummitt
• Court: West Virginia Supreme Court

129 W.Va. 366

State Of West Virginia

v.Lillian Crummitt

No. 9774

Supreme Court of Appeals of West Virginia.

Submitted On Rehearing September 18, 1944,

September 11, 1946.

Decided December 10, 1946.

1. Indictment:

A warrant, dated September 18, 1944, on which an accused is tried, as distinguished from a warrant of arrest, which charges that the accused did knowingly and unlawfully keep, maintain and operate a place of prostitution "on the day of, 1944", substantially follows the language of the statute describing that crime, and is sufficient upon a motion to quash.

2. Disorderly House

A charge of keeping, maintaining and operating a place of prostitution may be established by circumstantial evidence, but such evidence must create a "cogent irresistible presumption" that such crime was, in fact, committed.

Error to Circuit Court of Harrison County.

Lillian Crummitt was convicted before a justice of the peace of keeping, maintaining and operating a place of prostitution. The defendant appealed to the criminal court and upon verdict of guilty was sentenced to confinement in jail and to pay a fine. The circuit court refused to review the judgment of the criminal court and defendant was granted a writ of error and supersedeas by the Supreme Court of Appeals.

Judgment reversed; verdict set aside; new tried awarded.

Fox, Judge, dissenting.

Fred L. Shinn, for plaintiff in error.

Ira J. Partlow, Attorney General, Ralph M. Hiner, Assistant Attorney General, Eston B. Stephenson, Special Assistant Attorney General and J. Philip Clifford, Prosecuting Attorney, for defendant in error.

Haymond, Judge:

The defendant, Lillian Crummitt, was convicted before a justice of the peace of Harrison County, West Virginia, for the crime of keeping, maintaining and operating a place of prostitution. She appealed to the Criminal Court of Harrison County and upon a verdict of guilty she was sentenced to confinement in jail for one year and to pay a fine of $250.00. The Circuit Court of Harrison County refused to review the judgment of the Criminal Court, and the defendant was granted a writ of error and supersedeas by this Court.

The warrant, dated September 18, 1944, upon which the defendant was arrested and tried, charges that the

defendant "* * * on the day of,

1944, in the said County, did knowingly and unlawfully keep, maintain and operate a place of prostitution in that certain place, building and house, on the south side of Werninger Street, known as 609 Werninger Street, in the City of Clarksburg, in said County, against the peace and dignity of the State."

The principal witness for the State testified that on September 2, 1944, at about the hour of 9:45 P. M., he walked down Werninger Street and as he passed house No. 609 he saw the defendant and two other women sitting on the porch; that as he walked by the house the defendant asked him where he was going; that he stopped at the fence, which was practically against the porch, and talked for a short time and that he was asked to come in and go upstairs with one of the women for the purpose of prostitution; that he inquired as to the price and was told that it "would be all right"; and that he then excused himself, saying he wanted a drink and would come back, but that he did not return. On cross examination the witness testified that he did not go in the house or on the porch; that no men went in and that he saw no signs of disorder or "signs of prostitution being carried on there". He identified the other two women who were with the defendant at that time, and they, together with the defendant, were arrested at her home on September 19, 1944. The arresting officer testified that at the time he arrested the defendant and the other two women one of the latter remarked, in the presence of the defendant, that "* * * she knew she could not get away with this forever and she expected a raid of this kind." The officer further testified that at the time of the arrests no men were at the house; that no vulgar remarks were made; and that the women went upstairs to change their clothing. Two other witnesses, a deputy sheriff of Harrison County and a member of the detective force of the city, testified that No. 609 Werninger Street had a bad reputation for being a house of prostitution for a period of eight years or more. One of these witnesses testified that he had arrested the defendant for operating a house of prostitution. The foregoing is all the material evidence offered by the State in support of the charge.

The defendant denied all the statements of the principal witness for the State and also denied that she had ever seen him prior to the hearing before the justice of the peace on the instant charge; that neither of the other two women was at her home on September 2, 1944; that at no time had she operated a house of prostitution; that at no time had any person been there, or been solicited to come there, for that purpose; and that she had not been arrested during the time that she resided at that place. On cross examination she admitted having been arrested twice between the years 1938 and 1942, which was prior to her occupancy of 609 Werninger Street.

The other two women arrested with the defendant testified that they were not in Clarksburg on September 2, 1944, but admitted that they were at the house of the defendant on September 19, 1944, the date of their arrest, as overnight guests of the defendant; and that neither had seen the principal witness for the State prior to the hearing before the justice of the peace. The woman alleged to have made the statement with reference to a raid denied that she made that statement.

The proof offered by the State is limited to one instance of solicitation to engage in illicit intercourse; the general bad reputation of the house; and the statement made by one of its alleged inmates, from which statement an inference may be drawn amounting to a confession of some criminal act.

The defendant assigns a number of errors, but a discussion of the sufficiency of the warrant on which she was tried, and the evidence on which she was convicted, is sufficient to dispose of all assignments.

The contention of the defendant is that the warrant is bad and that her motion to quash it should have been sustained on the following grounds: (a) That it alleges conclusions rather than facts; (b) that it fails to contain the phrase incorporated in the statute "for the purpose" of prostitution; and (c) that the warrant does not sufficiently describe the offense to enable her to avail herself of the judgment in the event of a subsequent prosecution.

The pertinent parts of the statute alleged to have been violated by the defendant are: "Any person who shall keep, set up, maintain or operate any house, place, building, * * * other structure, * * * for the purpose of prostitution, lewdness, or assignation; * * * shall, upon conviction for the first offense under this section, be punished by imprisonment in the county jail for a period of not less than six months nor more than one year, and by a fine of not less than one hundred dollars and not to exceed two hundred fifty dollars, * *". Chapter 30, Article 8, Section 5, Acts of the Legislature, 1943, Regular Session. Another part of the same statute confers concurrent jurisdiction on justices of the peace to try persons charged with its violation.

A warrant charging an offense of which a justice of the peace has jurisdiction to try and pronounce judgment stands in place of a presentment or an indictment and the offense must be charged with the same particularity as in a presentment or an indictment. State v. Harr, 77 W. Va. 637, 88 S. E. 44. As indicative of the frequent application of the rule announced in the Harr case, see State v. Knight, 119 W. Va. 6, 191 S. E. 845; O'Don- nell v. Shipman, 113 W. Va. 274, 167 S. E. 700; Hartford v. Davis, 107 W. Va. 693, 150 S. E. 141; and State v. Har- less, 105 W.Va. 480, 143 S. E. 151. That rule is applicable to this case.

Prior to the adoption of the Code in 1931, the statute with reference to the offense here charged read: "If any person keeps a house of ill fame he shall be guilty of a misdemeanor and fined not exceeding two hundred dollars, and may, at the discretion of the court, be confined in the county jail not exceeding one year * * *". Section 10, Chapter 149, Code, 1923. The offense was not defined in the statute, and this Court in dealing with the statute held that resort must be had to the common law for a definition of such house. State v. Pyles, 88 W. Va. 636, 104 S. E. 100; State v. Badda, 97 W. Va. 417, 125 S. E. 159. The present statute defines one kind of house of ill fame, but, being penal, the common law definition cannot be judicially enlarged. State v. Pyles, 86 W. Va. 638, 104 S. E. 100. In the Badda case this Court quoted with approval two definitions of a house of ill fame:" 'A bawdy-house (or house of ill fame, as it is sometimes called) is a house kept for the reception of persons who choose to resort to it for the purpose of illicit sexual intercourse, and is indictable at common law.' 2 Wharton's Criminal Law, (11th Ed.), page 1883. 'A bawdy- house is any place, whether of habitation or temporary sojourn, kept open to the public either generally or under restrictions, for licentious commerce between the sexes. House of ill-fame is another name for the same thing. ' 1 Bishop on Criminal Law, (9th Ed.), 807," A house kept for public resort in which acts of prostitution are committed may also be described as a house of ill fame. "Bawdy house", "brothel" and "house of prostitution" are practically synonymous. The legislature in enacting Chapter 30, Article 8, Section 5 (a), Acts, 1943, Regular Session, describes an offense similar to that described in Section 10, Chapter 149, Code, 1923. The allegation in the warrant charging the defendant with keeping, maintaining and operating a place of prostitution implies that acts of lewdness and prostitution...