State v. MoGahan.

• Decision Date: 08 December 1900
• Citation: 48 W.Va. 438
• Parties: State v. MoGahan.
• Court: West Virginia Supreme Court

48 W.Va. 438

State

v.MoGahan.

Supreme Court of Appeals of West Virginia.

Decided December 8, 1900.

1. Disorderly House Indictment Sufficient.

An indictment (omitting the formal part) as follows: "Upon their oaths present and say that M. A. McGahan, on the 28th day of April, 1898, and thence continually, until the day of finding this indictment, at the county of Mineral, a certain illgoverned and uisorderly house unlawfully did keep and maintain, and in said house, for her own lucre and gain, certain evildisposed persons, as well men as women, of evil, name, fame, and conversation, to come together, on the days times aforesaid, there unlawfully and willingly did cause and procure; and the said person in the said nouse at unlawful times, as well in the night as in the day, on the day times as aforesaid, there to be and remain, armking, tippiing, cursing, swearing, quarreling, and otherwise misbehaving themselves, unlawfully did permit and suffer; to the common nuisance of all the people of this state, and against the peace and dignity of the state," held to be sufficient on demurrer, (pp. 439, 440).

2. New Trial Venue.

It is error for a circuit court to refuse to set aside the verdict of a jury, and grant a new trial, wnere a party is convicted of a misdemeanor, where no evidence is adduced at the trial showing the offense to have been committed within the jurisdiction of the court trying the case. (p. 443).

Error to Circuit Court, Mineral County.

M. A. McGahan was convicted of keeping a disorderly house, and brings error.

Reversed.

J. 1ST. Mc Mull an and C. N". Einnell, for plaintiff in error.

Atty. Gen. Edgar P. Pucker and L. C. Anderson, for the State.

McWhorter, President:

M. A. McGahan was indicted for keeping a disorderly house in the county of Mineral "on the 28th day of April, 1898, and thence continually until the day of finding this indictment, at the county of Mineral a certain ill-governed and disorderly house, unlawfully did, keep and maintain; and in said house for her own lucre and gain, certain evil-disposed persons, as well men as women, of evil name, fame and conversation, to come together, on the days times aforesaid, there unlawfully and willingly did cause and procure; and the said person in the said house at unlawful times, as well in the night as in the day on the day times as aforesaid, there to be and remain, drinking, tippling, cursing, swearing, quarreling, and otherwise misbehaving themselves, unlawfully did permit and suffer; to the common nuisance of all the people, of this State and against the piece and dignity of the State." Defendant demurred to said indictment, assigning as grounds of demurrer, that in using the language "and the said person in the said house at unlawful times," etc., the indictment charges that but one person was disorderly, and the fact that one person only should behave badly at a hotel and saloon, by tippling, cursing, swearing, etc., is not sufficient to sustain such a charge as it is a crime which one person acting alone could not commit. In State v. Halida, 28 W. Va. 499, it is said: "The law is well settled that verbal inaccuracies which do not affect the sense are not fatal. Mere misspelling is not fatal," and cites Whart. Or. Plead. & Pr. s. 273; Shay v. People, 22 N". Y. 317; State v. Gilmore, 9 W. Va. G41; State v. Hedge, 6 Ind. 333. It is there further held: "If the sense be clear, nice exceptions ought not to be regarded. And even when the sense or the word may be ambiguous, this will not be fatal, if it is sufficiently shown by the context in what sense the phrase or word was intended to be used." The use of the singular word "person" instead of the plural of that word was a mere mistake in leaving off the "s," as is clearly shown by what follows, referring to "the said person in the said house at unlawful times," etc., the indictment says, "there to be and remain, drinking, tippling, cursing, swearing, quarrelling, and otherwise misbehaving themselves." One person might drink, tipple, curse and swear, but he could hardly quarrel alone or "misbehave themselves" alone. 1 Bish. Crim. Pro. s. 354, says, "Any clerical error which cannot mislead, or an error in punctuation, it (the indictment) will not be held ill for the defect." State v. Wimberly, 3 McC. 190; Ward v. State, 50 Ala. 120. The demurrer to the indictment was properly overruled. Bill of exceptions No. 3, defendenat objected to the question and answer therein set out; the State asked the witness, G. G. Cain, "State whether or not you ever saw Hat Trenton in the alley near Mrs. McGahan's." Answer, "Saw Hat Trenton lying in Mr. Duty's w^agon in the alley, full, one night, and several men were there1 drinking beer at the time, don't know who the men were. The wagon was at Mr. Duty's stable, which is about one hundred and fifty feet from Mrs. McGahan's." The objection of defendant to question and answer was overruled, and the evidence admitted. 'There is no evidence showing that Hat. Trenton had even been at the house of Mrs. McGahan on that day, and surely it was improper to permit to be given in evidence transactions that occurred one hundred and fifty feet from the house of defendant, and in the same bill of exceptions, it is shown that the State was permitted to show by witness IT. G. Buxton that Sadie Rawlings and Mary Beseley left Keyser about three weeks before the trial, and witness was asked, "Did not Dr. Keys take Sadie Rawlings to Baltimore about three weeks ago?" and he answered by permission of the court over the objection of the defendant, "I have seen Dr. Keys on the train between Keyser and Baltimore, and saw Rawlings on the same train, but they were not together," and was also further permitted to state over such objection that he "saw Dr. Keys with Sadie Rawlings at a theatre in Baltimore two nights," and the evidence also of George Bane as set out in bill of exceptions No. 4, "Tell the jury what you saw take place up near Mrs. McGahan's." A. "Saw Frank Williams put his arm around Net Gordon about 8 p. m., one night. They were in the middle of Armstrong street a little below Mrs. McGahan's.

Dr. Keys was with Williams/' all of which was immaterial, and if it had any effect at all npon the jury it must only be to the prejudice of defendant. What could the fact of these women leaving Keyser or attending theatre in Baltimore have to do with the matter in issue, nothing improper in the conduct of the women being shown either in their leaving Keyser or attending theatre in Baltimore. State v. Brown, 71 Md. 275; Harzinger v. State, 70 Md. 278.

It is claimed, as set out in bill of exceptions "No. 5, that the court erred in refusing to instruct the jury to disregard the remarks of the prosecuting attorney in his argument closing this case "in reply to the charge of counsel for the defendant that he had shown undue zeal and feeling in the prosecution of this cause beyond that required as the representative of the State" in using the following language, "I ask a verdict at your hands because I have in this case a personal interest aside from my duty as prosecuting attorney. I have a boy I want to save." In State v. Allen, 45 W. Va. 65, (syl. pt. 6), holds, "Counsel necessarily have great latitude in the argument of a case, and it is, of course, within the discretion of the court to restrain them; but with this discretion the appellate court will not interfere, unless it clearly appears from the record that the rights of the prisoner were prejudiced by such line of argument." State v. Shores, 31 W. Va. 491. The record fails to advise this Court of the language used by counsel for defendant in making the charge referred to and to which the...