State v. Burley
| Decision Date | 26 November 1917 |
| Docket Number | No. 31876.,31876. |
| Citation | 181 Iowa 981,165 N.W. 190 |
| Parties | STATE v. BURLEY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; Charles A. Dudley, Judge.
Here there was a conviction on an indictment charging the crime of keeping a house of prostitution, and defendant appeals. Affirmed.F. T. Van Liew, of Des Moines, for appellant.
H. M. Havner, Atty. Gen., and F. C. Davidson, Asst. Atty. Gen., and Ward C. Henry, Co. Atty., of Des Moines, for the State.
[1] I. It is not, as the state seems to contend, an abandonment of errors specified and points made in rule manner because these were not elaborated by the argument in extenso. Such argument is desirable, but optional.
[2] II. The indictment charges that defendant is guilty “of the crime of keeping a house of prostitution,” committed as follows: That defendant on or about the 1st day of December, 1916, in said county and state, and on divers other times between the said 1st day of December, 1916, and the time of finding the indictment, “did willfully, unlawfully, and feloniously keep and maintain a house resorted to by divers persons * * * for the purpose of prostitution and lewdness, and in which house acts of prostitution and lewdness were committed.” It is urged the court erred in overruling the defendant's motion for new trial because this indictment charges the “keeping of a house of prostitution,” and that the statute provides no punishment for doing that. The vital thing in an indictment is that it have “a statement of the facts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” Code, § 5280. Giving the wrong name to the offense is not material. The facts stated determine for what defendant is to be tried. State v. Davis, 41 Iowa, 311;State v. Wyatt, 76 Iowa, 328, 41 N. W. 31;State v. Smith, 148 Iowa, 640, 127 N. W. 988;State v. McIntire, 59 Iowa, 264, 13 N. W. 286. If the offense charged has no name given to it by statute, the giving it a name in the indictment, which is repugnant to the facts alleged as constituting the offense, will be regarded as surplusage. State v. Shaw, 35 Iowa, 575. The contention is without merit.
III. As to the claim that there is no evidence that defendant committed any crime in Polk county within the statute of limitations. It is not well made whether construed to mean that venue was not proved, or that there is a failure to show that acts done where the venue is laid were done so recently as not to be within the bar of the statute. We shall not elaborate beyond saying that the abstract of appellee shows there was direct testimony that if anything prohibited occurred it was in Polk county, Iowa, and an abundance of testimony from which the jury could find that the time of doing did not invoke the statute.
[3][4] IV. A witness was asked what the fact was as to whether or not defendant would, when men came up there, serve intoxicating liquors to them. Upon objection that this was incompetent, immaterial, and had no bearing upon the offense charged, the trial judge said: An exception was saved. The answer was: In argument defendant says that evidence of other crimes, such as the handling of intoxicating liquors, is not competent under the indictment herein. That is so, broadly stated. And, as seen, the trial court so declared before the jury. He did not elaborate upon it by limiting the effect of such testimony in the charge––and he was not asked to––and the charge was not excepted to.
The question then is whether testimony that one charged with maintaining a house of ill fame supplied the patrons with intoxicating liquor is receivable for no purpose. On that question, State v. Shaw, 125 Iowa, 422, 101 N. W. 109, cited by the state, gives us no light; and State v. Steen, 125 Iowa, 307, 101 N. W. 96, and State v. Burns, 145 Iowa, 588, 124 N. W. 600, have no bearing on any question on this appeal. But if it had never been decided it would yet be true that upon this charge, or any other, all things are receivable if they tend to establish or refute the accusation on trial; and this, though what is received tends to show what in itself constitutes a crime. The test is not what act is being offered, but whether the offer is material and relevant. Suppose it were a crime to threaten the life of prosecutor. If defendant, tried for shooting prosecutor, asserted that he was friendly to prosecutor, as an argument that it was unlikely he had shot at him, would it be claimed that the threat was inadmissible because defendant was not on trial for the crime involved in such threat? In State v. Gardner, 174 Iowa, 748, 156 N. W. at 755, 756, L. R. A. 1916D, 767, we held that on such accusation as this all the circumstances developed in the evidence, such as the going and coming of people to the house, were to be considered. This was not an excluding specification, but an illustration. In State v. Gill, 150 Iowa, at 213, 129 N. W. 821, we deal with the sufficiency of the evidence to sustain the verdict. We set out as one item that one witness thought from the appearance of men going to and from the house through both back and front doors that most of them had been drinking, and another testified that one of them was drunk on leaving, and hold that this, with many other things set out, sustained the verdict. If, then, we are to sustain appellant, we must hold that in spite of these indications in our decisions, it is, as matter of law, immaterial and irrrelevant to show in proof of a charge of maintaining a house of ill fame that the owner furnished liquor to visitors. So to hold is to throw away common knowledge that liquor getting and drinking is a badge of the bawdyhouse. We are not minded to do this.
[5] V. The court, despite objection that it was not material, and not binding on defendant, received the following testimony by an alleged inmate:
She was accosted that morning on the public highway. “They” didn't say anything about testifying in this case. They called me a snitcher. They said they would get me if I came over here. They would keep me from coming. This was just one man; he grabbed me by the shoulder. I never saw this man up to Rose Burley's house that I know of. I saw him in the middle of Mulberry between Sixth and Seventh, this morning; saw him down on Walnut some place; don't know just where it was; couldn't say for sure; he said nothing to me at that time. Don't remember of ever seeing him before. Q. Now what is the fact, Miss Page, as to whether or not any threats have been made against you if you came to this court to testify in this case? A. What; there was never any threats, only one; it was said that if I testified I should go the same as if they convicted her; that they would convict me the same.
Through all of this the court stated repeatedly that it was of no weight, unless it should be made to appear that defendant was responsible for what was said and done. At the close of the testimony of the witness defendant moved to strike all the evidence relating to an alleged attack on the day of the trial, on the grounds that it is incompetent, irrelevant, and immaterial, and has no bearing upon the issue in this case, and is not involved or connected with defendant in any way. Counsel for the state answered that this testimony shows “they” told her they were going to get her if she came over here to testify to–day. Counsel for defense answered that it was not binding on defendant. And the court said:
Defendant consented that the ruling might be reserved. Now, it was not error to receive this testimony. The state could not prove all of any branch of its case by any one question and answer. It was bound to make this connection if it was to retain what it had put in, but the court had the power to say what the mere order should be. It did no more than exercise that power by ruling that the state might show first what was done, and later, that defendant was responsible. It made clear to all that the first should not count unless the last was proved.
[6] If error there was, it does not lie in receiving, but in failing to exclude in terms by making the ruling which was reserved. The reservation having been upon consent, there is no reversible error in failing to rule finally, because such final...
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