State v. Thursby

Decision Date11 February 1952
Docket NumberNo. 42913,No. 1,42913,1
Citation245 S.W.2d 859
PartiesSTATE v. THURSBY
CourtMissouri Supreme Court

Bruce Barnett, Kansas City, for appellant.

J. E. Taylor, Atty. Gen., Richard F. Thompson, Asst. Atty. Gen., for respondent.

VAN OSDOL, Commissioner.

Defendant Ray Thursby was convicted of the crime of receiving money, without consideration, from the proceeds of the earnings of a woman engaged in prostitution. R.S.1949, Section 563.040, V.A.M.S. His punishment was assessed by the jury at two and one-half years in the penitentiary. He has appealed from the ensuing judgment.

Herein upon appeal defendant-appellant contends (1) the indictment charging the offense was insufficient and a departure from the language and meaning of the statute, Section 563.040, supra; and (2) there was no substantial evidence introduced tending to show defendant's guilt. Defendant-appellant further contends (3) that the verdict of the jury was a special one, but did not state all of the essential elements of the offense, and so was insufficient as a finding of guilt of the crime charged; (4) that the trial judge without cause made a remark to defendant's counsel which was so humiliating to counsel that his efficiency in the further trial of the cause was affected, and the defendant was thereby prejudiced and put in an unfavorable position before the jury; (5) that the court failed to poll the jury as requested by defendant's counsel; (6) that error was committed in discharging, upon voir dire, two veniremen, Kraus and Brinton; and (7) that the trial jury was illegal in that it was selected from a panel of twenty-four which in turn was drawn from a general panel of veniremen not legally constituted.

Section 563.040, supra, under which defendant was charged and convicted, is as follows, '* * * any person who shall knowingly accept, receive, levy or appropriate any money or other valuable thing, without consideration, from the proceeds of the earnings of any woman engaged in prostitution, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment for a period not less than two nor more than twenty years.'

The indictment averred that defendant 'on or about the 27th day of April, 1950, at the County of Jackson and State of Missouri, did then and there unlawfully, feloniously and knowingly accept, receive, levy and appropriate a sum of money, without consideration, from the proceeds of the earnings of one Shirley Mae Cole, who was then and there engaged in prostitution * * *.'

(1) Concerning the sufficiency of the indictment--defendant-appellant contends the indictment does not follow the language of the statute, but differs materially by the insertion of the words 'who was then and there' between the word 'Cole' and the word 'engaged.' An essential element of the offense, against which the statute, Section 563.040, supra, is leveled, is that the money received by a defendant was money earned by a woman in prostitution. State v. Howe, 287 Mo. 1 228 S.W. 477. And defendant-appellant contends the language of the indictment is susceptible to a construction and admits of a finding of guilt, although the earnings received by defendant may have been earned otherwise than in prostitution. (In this connection we have examined the state's principal Instruction No. 2 which authorized a conviction only upon the finding that defendant 'did knowingly, unlawfully and feloniously accept, receive or appropriate to his own use any amount of lawful money of the United States from earnings made by the witness, Shirley Mae Cole, by engaging in prostitution, and that said money was accepted, received or appropriated to his own use by defendant without any consideration therefor independent of said witness engaged in prostitution as aforesaid * * *.') Defendant-appellant argues that the phrase 'engaged in prostitution,' as used in the statute, modifies and refers to 'earnings of' a woman, and that this reference is changed to 'a mere descriptio personae' by the use of a subordinate clause, 'who was then and there engaged in prostitution.' The language of the indictment is not the exact language but is substantially that of the statute. See State v. Carter, Mo.Sup., 64 S.W.2d 687. It sufficiently apprised defendant of the charge he was to be prepared to meet. We think the indictment no more than the statute admits of the interpretation that money charged as having been received by defendant could have been from earnings of a woman other than in prostitution. An information in form like the indictment in the instant case was tacitly approved by this court in the case of State v. Ackerman, 315 Mo. 219, 285 S.W. 739.

(2) There was evidence introduced tending to show that defendant, a bellboy at the Gladstone Hotel, entered into an understanding or agreement with one Frank Edward Myers that defendant would call him, Myers, in response to any arrangement which defendant might make with men at the Gladstone Hotel who desired sexual intercourse with one Shirley Mae Cole who was then cohabiting with Myers in another hotel in Kansas City. On the evening of the 25th (or 26th) day of April, 1950, defendant called Myers by telephone and, in response to the telephone call, Myers accompanied Shirley to the Gladstone Hotel where they were met by defendant at the elevator. Defendant conducted Shirley to a room on the next floor. Shirley testified confirming these facts, and further stated that she had sexual intercourse in the room with a man, a stranger to her, for which she received $10 and, upon leaving the room, she gave $4 thereof to defendant.

This evidence was substantial and sufficient in sustaining a finding of defendant's guilt of the crime charged, notwithstanding such evidence consisted of the testimony of Shirley, a prostitute, and of Myers, her pimp or procurer. It is true it was shown that Myers had been formerly convicted of felonies; that he was living in adultery with Shirley at the time of the alleged offense; that she was then pregnant by Myers; and that, as stated, he was acting as her procurer. Furthermore, it is true that Myers was also shown to have been charged with the violation of Section 563.040, supra; that he had entered a plea of guilty to the charge; and that he was awaiting the assessment of his punishment. These facts were no doubt considered by the jury in passing upon the credibility of the witnesses, Shirley and Myers, and in weighing their testimony, but such facts did not affect the competency of these witnesses, nor did such facts destroy the substantiality of their testimony. It is a settled rule that the jury has the peculiar province of judging the credibility of the witnesses and the weight and value of their testimony. The appellate court does not interfere with a jury's verdict supported by substantial evidence. State v. Cohen, Mo.Sup., 100 S.W.2d 544; State v. Biles, Mo.Sup., 2 S.W.2d 756; State v. Miller, 318 Mo. 581, 300 S.W. 765; State v. Hawkins, Mo.Sup., 210 S.W. 4.

(3) The jury's verdict was as follows, 'We, the jury find the defendant, Ray Thursby, guilty of Receiving Earnings from a Prostitute as charged in the Indictment and assess his punishment at two and a half years in the Missouri Penitentiary.'

We have the view that the verdict plainly stated the jury's intent to find defendant guilty 'as charged in the Indictment.' The language contained in the verdict ('of Receiving Earnings from a Prostitute') does not even purport to set out all of the essential elements of the crime of which defendant was charged; however, the language ('of Receiving Earnings from a Prostitute') was merely surplusage, and did not have the effect of changing the general verdict into a special one, inasmuch as the jury clearly expressed the intention to find the defendant guilty of the crime as charged in the indictment. State v. Glazebrook, Mo.Sup., 242 S.W. 928; State v. McCorkendale, Mo.Sup., 300 S.W. 815. See also State v. Darby, Mo.Sup., 165 S.W.2d 419. The case of State v. DeWitt, 186 Mo. 61, 84 S.W. 956, is inapplicable. See again State v. Glazebrook, supra.

(4) Relating to the contended error in the trial court's remark to defendant's counsel. Defendant's counsel had asked the witness, Shirley, if she had given money (earned in prostitution) to one Thomas. The trial court sustained an objection on the ground of immateriality. Thereupon defendant's counsel stated, 'I am doing exactly what he (counsel for the state) has just done. I permitted him to roam far afield.' The trial judge then remarked, 'That character of statement is childish and shouldn't be made in the trial of a case. The question is whether this particular question is admissible or not.' The record does show that the trial judge was somewhat petulant, but the remark of the judge in no way indicated how he thought the case ought to be decided, nor did the remark tend to prevent the jury from performing their duties in an impartial manner. The mere criticism of counsel is not ordinarily considered a ground for reversal. State v. Teeter, 239 Mo. 475, 144 S.W. 445. The statement of defendant's counsel was not called for or justified in the situation. The reprimanding of counsel during the progress of a trial is largely within the discretion of a trial court. State v. Long, 336 Mo. 630, 80 S.W.2d 154.

(5) The record shows that, upon the return of the verdict by the jury, defendant's counsel requested of the trial court and the trial court acted as follows,

'Mr. Hill: I would like to have the jury polled, Your Honor.

'The Court: Is this, ladies and gentle men, your verdict in this case?

'Jurors: Yes, it is.'

Apparently the trial judge did not ask of each juror individually if the juror had concurred in or had assented to the verdict. A litigant has the right to request and it is error to refuse a litigant's request for a poll of the jury. In polling a jury, each juror should be questioned individually, so...

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    • United States
    • Court of Appeal of Missouri (US)
    • April 18, 1958
    ...be decided and in no manner humiliate or reflect upon defendant or his counsel. State v. Stillman, Mo., 310 S.W.2d 886; State v. Thursby, Mo., 245 S.W.2d 859, 863(8, 9); State v. Teeter, 239 Mo. 475, 144 S.W. 445, 447(4). The remark in the instant case, coming near the end of a trial in whi......
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