State v. Lakin
| Decision Date | 07 February 1944 |
| Docket Number | No. 38735.,38735. |
| Citation | 177 S.W.2d 500 |
| Parties | STATE v. LAKIN. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.
Edith Lakin was convicted of knowingly accepting, without consideration, the earnings of a woman engaged in prostitution, and she appeals.
Affirmed.
Roy McKittrick, Atty. Gen., and W. O. Jackson, Asst. Atty. Gen., for respondent.
BOHLING, Commissioner.
Edith Lakin appeals from a judgment imposing two years' imprisonment for knowingly accepting, without consideration, the earnings of a woman engaged in prostitution. Sec. 4399, R.S.1939, Mo.R.S.A. Appellant has filed no brief.
The information is in greater conformity with the statute than the information held sufficient in State v. Ackerman, 315 Mo. 219, 224(I), 285 S.W. 739, 740(I).
The verdict was sufficient. It found appellant guilty as charged and assessed the punishment. State v. Ackerman, supra (I, a).
Several of appellant's contentions overlap. They have to do with the information charging the commission of the offense "on or about" May 16, 1942. The prosecutrix' testimony, among other things, established that she was working for appellant as a prostitute on May 16, 1942; that about 6 o'clock on the morning of May 17, 1942, she gave appellant $17 of her earnings and that she received nothing from appellant in return for this money. Appellant's asserted failure of proof on the ground the proof established an offense on a date different than that charged is without legal substance. Time was not of the essence of the offense. State v. Woodall, Mo.Sup., 300 S.W. 712, 713[3]. Consult Sec. 3952, R.S.1939, Mo.R.S.A.; State v. Thompson, 155 Mo. 300, 307, 55 S.W. 1013, 1015; State v. Mitchell, 229 Mo. 683, 697, 698, 129 S.W. 917, 921, 922[9], 138 Am.St.Rep. 425; State v. Moore, 203 Mo. 624, 626(1), 102 S.W. 537, 538; State v. Loahmann, Mo.Sup., 58 S.W.2d 309, 311[5]; State v. English, Mo.Sup., 228 S.W. 746, 750[5]. The cases cited also refute appellant's contention that the State's main instruction was erroneous on account of the use of the words "on or about" May 16, 1942. State v. Loahmann, supra. In the circumstances, evidence establishing the commission of the offense on the morning of May 17, 1942, was material and no error arose out of its admission.
Complaint is made of the prosecuting attorney's argument. The record preserves only a portion of the argument and fails to disclose whether the argument shown was from the opening or the closing argument. Two of the new trial assignments relate to matters not shown in the record. Allegations of error in motions for new trial do not prove themselves. There is, therefore, nothing before us to establish error with respect to said two assignments. State v. Aguelera, 326 Mo. 1205, 1215(V), 33 S.W.2d 901, 905[9]; State v. Westmoreland, Mo.Sup., 126 S.W. 2d 202, 203[7]. Another assignment is leveled against the statement in argument that the prosecuting witness gave "defendant $17" to pay the prosecuting witness' debts "in addition to the $17" paid without consideration out of the prosecuting witness' earnings, on the ground the statement was incorrect. The cross-examination of the prosecuting witness covered the use she made of certain of her earnings. The record is a bit confusing on this. She testified, in part, upon cross-examination and upon redirect examination, that she gave appellant a total of $10 to pay certain of her debts. Appellant's defense and her testimony was that the prosecuting witness merely paid what appellant had advanced her creditors. Upon objection the court answered that the jury had heard the evidence. The record indicates that both counsel for the State and counsel for the appellant were somewhat confused, as we think they well might be, on precisely what the record showed in this respect. It was a factual matter. Under the authorities the statement was not reversible error. State v. Kaiser, 124 Mo. 651, 672, 28 S.W. 182, 188; State v. Wieners, 4 Mo. App. 492, 498; State v. Wieners, 66 Mo. 13, 29. Trial courts have considerable discretion with respect to discharging the jury for alleged improper argument. State v. Cohen, Mo.Sup., 100 S.W.2d 544, 550 [16]; State v. Raines, 333 Mo. 538, 541, 62 S.W.2d 727, 728[4].
An assignment accuses the State's witnesses of perjury. The jury passed on the credibility of the witnesses and conflicts in the testimony of the different witnesses were peculiarly within the province of the jury.
A number of reasons exist for disallowing appellant's assignment of error on the ground newly discovered evidence...
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State v. Cole
... ... The ... motion is not verified either by appellant or his counsel, ... and there is no showing as to when this new evidence was ... discovered or that diligence was used to discover it. This ... was necessary and the assignment must be overruled. State ... v. Lakin (Mo., Div. 2), 177 S.W.2d 500, 501(8) ... [354 ... Mo. 191] Another assignment complains that the trial court ... erred in refusing to permit the appellant to use Dr. James H ... Connor and Dr. R. H. Gradwohl as witnesses on his case ... although they had been subpoenaed ... ...
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State v. Linders
...life, habits, and conduct as shown in evidence and his assignment (No. 21) to that effect is not sustained by the record. State v. Lakin (Mo.), 177 S.W.2d 500[3]. We find error committed in connection with counsel's argument. Assignments Nos. 22 and 24, and No. 23 insofar as it presents new......
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State v. Linders
...life, habits, and conduct as shown in evidence and his assignment (No. 21) to that effect is not sustained by the record. State v. Lakin, Mo.Sup., 177 S.W.2d 500 [3]. We find no error committed in connection with counsel's Assignments Nos. 22 and 24, and No. 23 insofar as they present new m......
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State v. Pittman
... ... State v ... Grove (Mo.), 204 S.W.2d 757, 760 [7]; State v ... Taylor, 356 Mo. 1216, 205 S.W.2d 734, 738[16]; State ... v. Rose, 339 Mo. 317, 96 S.W.2d 498, 502[1, 2]; ... State v. Hohensee, 333 Mo. 161, 62 S.W.2d 436, ... 439[5]; State v. Lakin (Mo.), 177 S.W.2d 500, ... The ... newly discovered evidence in the instant case was to the ... effect the new witness had telephoned defendant's home ... about 9:00 o'clock on the night of the offense and talked ... with defendant, and that it would have been impossible for ... ...