State v. Schuman

• Decision Date: 23 December 1915
• Docket Number: 13066.
• Court: Washington Supreme Court
• Parties: STATE v. SCHUMAN.

153 P. 1084

89 Wash. 9

STATE v. SCHUMAN.

No. 13066.

Supreme Court of Washington

December 23, 1915

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Paul Schuman was convicted of crime, and he appeals. Affirmed.

See also, 152 P. 3.

John F Dore and Robert Welch, both of Seattle, for appellant.

Alfred H. Lundin and Joseph A. Barto, both of Seattle, for the State.

ELLIS J.

The defendant Schuman, a patrolman on the police force of the city of Seattle, was accused jointly with one Shea in an information charging that:

'They, said Charles Shea and Paul Schuman, and each of them, in the county of King, state of washington, on the 8th day of February, 1915, did then and there willfully, unlawfully, and feloniously accept the earnings of one Pearl Williams, she, said Pearl Williams, then and there being a common prostitute.'

He demanded and was accorded a separate trial. The prosecuting witness, Pearl Williams, testified in substance that she was a common prostitute; that she had been in the habit of frequenting the American dafé, which was on the appellant's beat, and there soliciting men to accompany her to various hotels and practice prostitution; that about 10 months before the trial the defendant called her into a box in another café and informed her that she could not make any money unless he made some also, and that he would have to have $5 a week; that a night or two afterwards he told her to put the money in an envelope, write on it 'Paul,' and leave it at a cigar stand with either one of two men whom he described as the big blond fellow and the dark fellow, who, as she afterwards learned, were Shea and his partner; that the purpose of paying the money was to enable her to frequent the American café in pursuit of her calling without fear of molestation or arrest by the defendant; that pursuant to this agreement she left $5 at the cigar stand each week for some weeks; that the last time she left money for the defendant was on February 8, 1915, the date charged in the information. The defendant denied these things in toto, and there was much evidence tending to discredit the woman's story. There was also much evidence tending to corroborate it. The evidence so far as necessary will be discussed in considering the several assignments of error. The jury found the defendant guilty. From the judgment of conviction and sentence, he appeals.

The appellant claims: (1) That the information was insufficient to charge a crime; (2) that the evidence was insufficient to sustain the verdict; (3) that evidence as to other offenses was improperly admitted; (4) that evidence as to appellant's character for truth, honesty, and faithful official conduct was improperly rejected; (5) that expert testimony as to the effect of the habitual use of cocaine upon the user's veracity was improperly excluded; (6) that the court improperly commented upon the evidence in the presence of the jury; (7) that the court refused to give a proper instruction which was requested; (8) that the court gave an improper instruction; (9) that the court abused its discretion in refusing permission to recall a witness in order to lay the foundation for certain impeaching evidence.

1. It is first urged that the information is insufficient and that it impinges the mandate of section 2055, Rem. & Bal. Code, which requires 'a statement of the acts 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.' It is admitted that the information is identical with that upheld by this court in State v. Columbus, 74 Wash. 290, 133 P. 455; but it is insisted that the Columbus Case is inconsistent with the rules announced in State v. Gifford, 19 Wash. 464, 53 P. 709, State v. Dodd, 84 Wash. 436, 147 P. 9, State v. McFadden, 48 Wash. 259, 93 P. 414, 14 L. R. A. (N. S.) 1140, and State v. Muller, 80 Wash. 368, 141 P. 910. In the recent case of State v. Crane, 152 P. 989, the same argument was made as that here advanced, but we there again sustained an information couched in practically the same terms as that here and in the Columbus Case. Inasmuch as it is still insistently urged that the Columbus Case runs counter to the decisions above cited, we deem it expedient, briefly as it may be, to notice those cases.

In State v. Gifford, supra, the information specified the manner of the commission of the crime and was held sufficient. The testimony, however, showed that the appellant was an accessory before the fact--that he acted as the procurer. Since this was not charged it was held that there was a failure of proof of the crime as charged. Here, however, the proof was that the appellant accepted the earnings of a prostitute by his agent, Shea. He was charged as a principal and the proof showed him a principal.

The information in State v. Dodd, supra, was the antithesis of that found in the case before us. There the information charged the commission of three separate and distinct acts prohibited by subdivision 1 of section 2440, Rem. & Bal. Code. It was held bad under section 2059, Rem. & Bal. Code, which requires that the information 'must charge but one crime, and in one form only.' In the Columbus Case and in the case here the crime charged was under subdivision 5 of the same section 2440, which also prohibits three distinct acts. The information, however, was just the converse of that in the Dodd Case. It charged the commission of only one of the acts specified in this subdivision, thus avoiding the specific defect found in the information in the Dodd Case.

In State v. McFadden, supra, the accused was charged with causing the death of a child by counseling the withholding of certain kinds of food, but failed to state what other food he prescribed, though implying that he did give other directions as to food. The distinction between that case and this is self-evident.

It is also insisted that the informations here and in the Columbus Case were fatally defective in that they failed to state the specific earnings accepted. It is argued that 'earnings' is a generic term, and that under the rule stated in State v. Muller, supra, the information should have descended to the particulars, and stated whether money, and, if so, how much money was accepted. The Muller Case involved a charge of bringing into a dry unit of Island county intoxicating liquors in prohibited quantities. As pointed out in the opinion, there were both wet and dry units in that county, and the information did not allege into what particular unit the liquor was brought. We held that to charge a crime it should have designated the unit and that the statute prescribing the essentials of the information in such cases carries that necessary implication. Section 6310, Rem. & Bal. Code. The difference from the case here is plain. The statute there involved provides that it shall not be necessary to state in the information the particular kind of liquor, though it is obvious that 'intoxicating liquors' is as generic a term as 'earnings of a prostitute.' We see no reason why we should adopt a more technical rule as to charging the crime here in question than the Legislature prescribed for charging the crime there involved.

It is further asserted that the information here failed to charge that the appellant knew that the earnings accepted were the proceeds of prostitution. It does, however, charge that he 'willfully, unlawfully, and feloniously' accepted the earnings of a common prostitute. This of course means the earnings of a common prostitute as such, not her earnings as a cook, a laundress, or a seamstress, as suggested. State v. Crane, supra. The words 'willfully and unlawfully' sufficiently charge knowledge and evil intent. State v. Muller, supra; State v. Zenner, 35 Wash. 249, 77 P. 191; State v. Barker, 43 Wash. 69, 86 P. 387. The information charges the crime in the language of the statute so far as applicable to the facts, and in words well calculated 'to enable a person of common understanding to know what was intended.' It is sufficient.

2. It is claimed that the evidence was insufficient to sustain the verdict in that it failed to show that the money was paid or received with intent to aid, assist, or abet the prostitution of the prosecuting witness. The claim is unfounded. The evidence, if believed, was sufficient to show that the money was paid solely in consideration of appellant's promise that the woman would be permitted to frequent the American café and there solicit consorts in prostitution without molestation. If this protection was not aiding, as sisting, and abetting it is difficult to conceive of conduct short of actual panderage that would be.

Equally unfounded is the claim that there was no evidence of an acceptance. The money was paid in the manner and to the person designated by the appellant. The acceptance was as complete as if it had been paid to the appellant in person.

Though the state's witnesses were all from the underworld, and its principal witness was shown to be a thief, the credibility of their testimony was for the jury. On that point the verdict is conclusive.

3. Three other women, all confessed prostitutes, were permitted to testify over appellant's objection, that at about the time charged in the information, and by arrangement with the appellant, they had paid for permission to frequent the same café in aid of their calling by leaving money in the same sums and in the same place for the appellant as testified to by the prosecuting witness. It is urged that this was prejudicial error, in that the evidence related to independent offenses. It is, of course, a general rule that evidence of the commission of a separate and...