State v. Mauch

• Decision Date: 06 February 1945
• Docket Number: 46532.
• Citation: 17 N.W.2d 536,236 Iowa 217
• Parties: STATE v. MAUCH.
• Court: Iowa Supreme Court

17 N.W.2d 536

236 Iowa 217

STATE v. MAUCH.

No. 46532.

Supreme Court of Iowa

February 6, 1945

Rehearing Denied April 6, 1945.

Walter F. Maley, of Des Moines, for appellant.

John M. Rankin, Atty. Gen., Charles H. Scholz, Asst. Atty. Gen and Thomas M. Healy, Co. Atty., of Fort Dodge, for appellee.

MILLER Justice.

On October 22, 1943, defendant was charged by county attorney's information with the crime of keeping a house of ill fame as defined by Section 13175, Code 1939. On November 22, 1943 she entered a plea of not guilty. Trial was had, commencing on December 7, 1943, resulting in defendant's conviction from which she appeals to this court. The brief and argument, filed in her behalf in this court, sets forth her assignments of error in six divisions. Each division is subdivided to assert various propositions of law. The case can be more understandingly disposed of if the order of presentation is changed somewhat from that employed by defendant's counsel.

I. Defendant's Division VI asserts that the court erred in overruling her motion for a directed verdict when made at the close of the State's evidence and when renewed at the close of all the evidence and in overruling that part of the motion for new trial which again asserted that the evidence was insufficient to sustain a verdict of guilty. We find no merit in such contention.

This court has recognized repeatedly that the crime here charged is one of darkness and secrecy, that witnesses are naturally reluctant to publish their own shame by giving evidence of their participation in such acts, so that guilt is usually established by proof of facts and circumstances which are badges of a bawdy house, and testimony of its reputation as such, from which the inference of guilt is so strong as to exclude reasonable doubt. It is quite obvious that it would not be desirable or proper to here set forth in detail all of the evidence of this character which the record contains. A brief summary of the high lights will suffice.

There is no dispute but that the defendant was the owner of the premises herein and, while she owned a bungalow where she claimed to make her home, it is also shown without serious dispute that defendant operated the premises herein. Defendant kept roomers there and furnished them meals if they so desired, but she had no license to operate a hotel or restaurant and there were no signs advertising the fact that she furnished rooms or meals. Men, in groups of from one to eleven, visited the premises at late hours of night, as late as 4:00 A. M. Taxicabs drove up to the premises and discharged passengers, always men, at the house. The callers were often admitted at the door by defendant. The callers often appeared to remain for only a short time. The house was near a railroad depot. The inmates of the house were observed on the porch, scantily attired, when troop trains were going through. On June 7, 1942, the police were at the house and found a girl and a man, not husband and wife, together in an upstairs bedroom; the girl was hiding in a clothes closet, clad in a bath robe; the man was sitting on the bed putting on his trousers. In 1942, a young woman complained that her father had been robbed at defendant's place; defendant asserted to the police that the man had been there but had spent only $7 and that 'the girl had earned this money and deserved it.' The chief of police, a special agent for the railroad and various police officers testified that defendant's reputation for chastity and virtue was bad and that the reputation of the house was that of a house of ill fame.

On September 15, 1943, the house was raided under a search warrant for narcotics by D. V. Carter, special agent of the State Narcotics Division, and several members of the police force. They discovered five women besides defendant. The three younger women were rather scantily attired in pajamas or slacks. Defendant wore a loose blouse and shorts. A young sailor was present. One of the women was observed hastily hiding something in a drawer. It was a memorandum book, identified as Exhibit 5. The jury was warranted in concluding that the entries therein were those of the amounts of receipts of defendant's prostitutes and the division of earnings. When the book was discovered, the woman who was hiding it said, 'Oh my God, he has got the book.' Defendant offered the chief of police $1000 for the return of the book to her. Several bottles of whiskey and gin with liquor seals of foreign states were found together with 'shot' glasses, a punchboard, douche bags, vaseline and antiseptic used for feminine hygiene. In the room referred to as Marie Turner's were found a quantity of narcotics and hypodermics and needles.

Without further elaboration, we are satisfied that the evidence of various badges of a bawdy house, taken with the testimony of the reputation of the place as being a house of ill fame, produced an inference of guilt that was strong enough to exclude reasonable doubt and was sufficient to sustain the conviction. The following decisions of this court support our conclusion herein. State v. Schaffer, 74 Iowa 704, 39 N.W. 89; State v. Burns, 145 Iowa 588, 124 N.W. 600; State v. Gill, 150 Iowa 210, 129 N.W. 821; State v. Toombs, 79 Iowa 741, 45 N.W. 300; State v. Porter, 130 Iowa 690, 107 N.W. 923; State v. Flynn, 175 Iowa 604, 155 N.W. 254; State v. Burley, 181 Iowa 981, 165 N.W. 190; State v. Steen, 125 Iowa 307, 101 N.W. 96.

II. Defendant's Division I sets forth a number of errors, asserting that the court erred in overruling her motion for a continuance, in overruling her motion for change of place of trial, in permitting evidence to be received that narcotics were found on the premises, in refusing to grant her request that she be tried first on the charge of illegal possession of narcotics then pending against her, in overruling her motion for change of venue. Division II asserts that the court erred in admitting in evidence the punchboards, bottles of whiskey and gin, drinking glasses, narcotics and narcotic equipment, which were found on the premises at the time of the raid on September 15, 1943. These various contentions are, in some respects, related to each other and will be considered together.

Following the raid of September 15, 1943, three charges were filed against defendant. One was for keeping a house of ill fame. One was for illegal possession of narcotics. The third was for condemnation of her automobile for illegal transportation of narcotics. On December 6, 1943, the day before the trial commenced, defendant filed motions for a continuance, for a change of place of trial and for a change of venue. Defendant filed a supporting affidavit to the petition for a change of venue and verified the motions for a continuance and for a change of place of trial and affidavits of a physician and three residents of Ft. Dodge were attached to the motions for continuance and for change of place of trial.

It is difficult to briefly summarize the claims thus asserted. Essentially they were these: When defendant was arraigned on November 22, 1943, the presiding judge displayed a decided prejudice against her; Marie Turner, one of defendant's witnesses, was ill and could not attend the trial; if present she would testify that she operated defendant's automobile without defendant's consent (when transporting narcotics); Marie Turner was induced by a 'stool-pigeon' of Carter to use defendant's car to transport said narcotics; Marie Turner, as a witness, would deny that defendant was connected with the narcotics and would deny that defendant operated a house of ill fame; at the time of defendant's arraignment, defendant asked the judge that the case be assigned for trial after Marie Turner had recovered, that ample time be given her counsel to prepare for defense, that the forfeiture proceeding be tried first; the judge stated that defendant had already had ample time to prepare for trial, that the illness of Marie Turner offered no excuse for any delay, that defendant could make formal application for continuance; the judge frequently expressed himself very emphatically as being prejudiced against defendant; certain newspaper articles had appeared in the Fort Dodge Messenger & Chronicle, which were highly inflammatory and prejudicial to defendant identifying defendant with the narcotic charge and keeping a house of ill fame, and defendant could not receive a fair trial at Ft. Dodge.

The State filed a resistance to the motions for continuance and for change of place of trial and this was apparently considered to be also a resistance to the petition for a change of venue. The State contended: the motion for continuance was not in proper form, was filed too late and there was no showing of diligence; the claims as to testimony of Marie Turner are confused by being linked with legal conclusions and with facts, perhaps material to the condemnation proceedings, but not competent on the trial of this case; the testimony as to finding narcotics would be competent as part of the res gestae; the State admitted that Marie Turner would testify as follows:

'That her name is Marie Turner living at 309 South 4th Street, in the City of Fort Dodge, Iowa, on September 15, 1943. If present she would testify that any narcotics and equipment found at the premises known as 309 South 4th Street, in the City of Fort Dodge, Iowa, and 441 11th Avenue S.W. were property of Marie Turner and that the defendant in this case had nothing to do with the same and had no knowledge that the same were located at either place. That she would further testify that she was using certain drugs and that she personally secured said narcotics and that the defendant had no knowledge of where she obtained them and...