State v. Smith

• Decision Date: 08 July 1968
• Docket Number: No. 2,No. 53114,53114,2
• Citation: State v. Smith, 431 S.W.2d 74 (Mo. 1968)
• Parties: STATE of Missouri, Respondent, v. Leon Herbert SMITH, Appellant
• Court: Missouri Supreme Court

Page 74

431 S.W.2d 74

STATE of Missouri, Respondent, v. Leon Herbert SMITH, Appellant.

No. 53114.

Supreme Court of Missouri, Division No. 2.

July 8, 1968.

Motion for Rehearing and/or Transfer to Court En Banc Denied

Sept. 9, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Austin B. Speers, Sp. Asst. Atty. Gen., Kansas City, for respondent.

J. Kehlor Carr, Jr., Clayton, for appellant.

STOCKARD, Commissioner.

Defendant was found guilty by a jury of knowingly transporting a female through the state for the purpose of prostitution in violation of Section 563.070, (all section references are to RSMo 1959, V.A.M.S., unless otherwise stated) and was sentenced to imprisonment for a term of two years. He has appealed from the ensuing judgment.

Section 563.070, insofar as here material, provides that 'any person who shall knowingly transport or cause to be transported, * * * any female person through or across this state for the purpose of practicing prostitution * * * shall be deemed guilty of a felony, * * *.' The evidence authorizes a finding by the jury that in the early morning of April 24, 1966, the date charged in the indictment, defendant transported the prosecuting witness by automobile from her apartment in the City of St. Louis to a hotel in St. Louis County for the purpose of practicing prostitution.

Defendant contends that Section 563.070 is unconstitutional because it is 'too vague and indefinite, and fails to set up an ascertainable standard of guilt.' He argues that the legislature 'could have clarified the statute by use of the words 'in or within,' but this was not done and the words 'through or across' are ambiguous.' Defendant also contends that the evidence was insufficient because he 'did not transport a female 'through' the State of Missouri, but merely from one county to another county.'

It is a long established principle that a statutory crime must be defined with sufficient definiteness that there be ascertainable standards of guilt to inform those subject thereto as to what conduct will render them liable to punishment. State v. Becker, 364 Mo. 1079, 272 S.W.2d 283; Ex parte Hunn, 337 Mo. 256, 207 S.W.2d 468; State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765. However, impossible standards of specificity are not required. Eastman v. United States, 8 Cir., 153 F.2d 80, certiorari denied 328 U.S. 852, 66 S.Ct. 1342, 90 L.Ed. 1625, rehearing denied 329 U.S. 819, 67 S.Ct. 29, 91 L.Ed. 698. The test is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Berger v. United States, 8 Cir., 200 F.2d 818.

The word 'through' is a function word capable of several meanings depending on its use. It may indicate a passage from one side to another, as 'he walked through the gate.' It also may indicate a means of communication, as 'he spoke through an interpreter.' But, as used in the statute under consideration it is used 'to indicate movement from point to point within a broad expanse or area.' Webster's Third International Dictionary. We have found but one case bearing on this issue, and that is Commonwealth v. Neely, 138 Pa.Super. 589, 10 A.2d 925. There the statute made it a crime to transport a female person 'through or across this Commonwealth' for the purpose of prostitution. It was held that the transportation 'in the Commonwealth from one county into another, is within a strict construction of the language of the act,' and that the distance traveled is immaterial. We concur in this view. A common understanding of the phrase 'through * * * this state,' in the context used, includes the conduct of the defendant in transporting the prosecuting witness from one point in the state to another point.

Defendant also asserts that venue was not in the circuit court of the City of St. Louis. He contends that if a crime was committed, it did not occur until he entered St. Louis County. We find no special statute pertaining to the venue of an offense charged under Section 563.070. Therefore, pursuant to Section 541.030 the venue is 'the county in which the offense is committed.' The elements of the offense of which defendant was charged, as defined by Section 563.070, are knowingly transporting a female person through this state for the purpose of prostitution. We find no reference to transportation from one county to another. The distance traveled is immaterial. Commonwealth v. Neely, supra. A violation of Section 563.070, under the evidence in this case, occurred in the City of St. Louis, and venue was properly there.

The prosecuting witness first met the defendant on April 13, 1966. Over the objection of defendant she was permitted to testify that from April 2 to April 13 she engaged in acts of prostitution in St. Louis, and that from April 13 to April 19 she engaged in acts of prostitution after being conveyed to various places by defendant in his taxicab. Defendant assigns as error the admission of this evidence on the grounds that the prosecuting witness 'did not know the defendant during the whole period and there is no showing that the defendant knew of her activities or had any participation in these activities.' Defendant asserts that proof of these activities was 'proof of other crimes and hearsay and attempted to show bad character of the defendant who did not offer proof of character.'

The activities of the prosecuting witness from April 2 to April 13 was offered on the theory that the fact that she was a prostitute was an element of the offense. We note that counsel for defendant agreed that it was. We do not so consider it to be. The act of transportation and the purpose, that is, the intent of defendant, are the principal elements of the offense, and a person can be guilty of the offense by transporting a female person for the purposes of prostitution even though he is mistaken in his belief that the person so transported is a prostitute. As stated in Commonwealth v. Neely, supra, 'The purpose in transporting determines the guilt regardless of whether that purpose be consummated.'

We consider the evidence of the activities of the prosecuting witness from April 2 to April 13, before defendant became acquainted with her, to be immaterial, but it was not prejudicial to the defendant. It did not prove any prior crime on his part, and it did not affect adversely his character. While it may be said that this testimony was hearsay as to the defendant, the prosecuting witness testified as to her knowledge. A judgment is not to be reversed because of the admission of irrelevant and immaterial evidence which is clearly not prejudicial to the defendant. State v. Fulkerson, Mo., 331 S.W.2d 565; State v. Spica, Mo., 389 S.W.2d 35, certiorari denied 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312; State v. Hacker, Mo., 291 S.W.2d 155.

Testimony by the prosecuting witness that from April 13 to April 19 defendant transported her by taxicab to various places in St. Louis for purposes of prostitution constituted evidence of the commission by him of separate and distinct crimes other than the one charged against him. Generally, evidence of a different crime is inadmissible. State v. Scown, Mo., 312 S.W.2d 782; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304. However, certain welldefined exceptions to the above general rule are recognized in the cases. In State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768, this court said: 'Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof.' See also State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24; State v. Saussele, Mo., 265 S.W.2d 290; 20 Am.Jur., Evidence, § 310. The theory advanced at the trial, out of the presence of the jury, was that it was incumbent upon the state to prove as an element of the offense that the prosecuting witness was in fact a prostitute. As previously noted, we are impressed with that theory, but if the evidence was competent on any theory or for any purpose, the trial court is not to be convicted of reversible error for admitting it. State v. Scown, supra, 312 S.W.2d at p. 789. One of the recognized exceptions to the general rule excluding evidence of other crimes is that evidence is admissible when there is a 'common scheme or plan embracing the commission of separate similar offenses.' The evidence that defendant transported the prosecuting witness regularly (the evidence was that it occurred almost everyday) to various places for purposes of prostitution was admissible on this theory, and these regular occurrences constituted evidence bearing on the purpose of the transportation on the occasion mentioned in the indictment. See generally the discussion and the factual situation in State v. Scown, supra. See also State v. Adamson, Mo., 346 S.W.2d 85; and State v. Burnett, Mo., 429 S.W.2d 239. We find no prejudicial error in the admission of this evidence.

Over the objection of defendant, the prosecuting witness was permitted to testify that on April 22 she contacted a police officer and went to a police station with him; that she then went to the 'morality office' with Detective Johnson and then to the corner of Ninth and Washington Streets; that on the following day she had a conversation with defendant, returned to the 'morality office,' and then returned to her home in the company of two detectives. Detective Koviak was permitted to testify, over defendant's objection, that a few minutes after midnight on the morning of April 23, he left police headquarters with the prosecuting witness, a Mr. Leo McDonald, and Detective Johnson, and that he and Detective Johnson went to the 'vicinity of Ninth and Market...