Sullivan v. State

• Decision Date: 09 May 1928
• Docket Number: No. 24624.,24624.
• Citation: 161 N.E. 265,200 Ind. 43
• Parties: SULLIVAN v. STATE.
• Court: Indiana Supreme Court

200 Ind. 43

161 N.E. 265

SULLIVAN

v.STATE.

No. 24624.

Supreme Court of Indiana.

May 9, 1928.

Appeal from Delaware Circuit Court; C. W. Dearth, Judge.

John Sullivan was convicted of keeping a house of ill fame, and he appeals. Reversed, with instructions.Leffler, Ball & Leffler of Muncie, for appellant.

U. S. Lesh, Atty. Gen., and O. S. Boling, of Indianapolis, for the State.

PER CURIAM.

Appellant, in the court below, was indicted, tried by a jury, and convicted of keeping a house of ill fame. Judgment on the verdict. He has appealed and assigned as errors the overruling of his motion to quash the indictment, the overruling of his motion for a new trial, and the overruling of his motion in arrest of judgment.

[1] The statute defining the offense with which appellant was charged provides that:

“Whoever keeps a house of ill fame, resorted to for the purpose of prostitution or lewdness, *** shall be fined,” etc. Section 2562, Burns' 1926.

That part of the indictment material to the questions raised by the motions to quash and in arrest of judgment states that:

Appellant “at and in the county of Delaware, state of Indiana, did then and there unlawfully keep a house of ill fame, which was then and there, and during all of said time, resorted to for the purpose of prostitution and lewdness by persons, male and female, who were then and there of bad reputation for chastity and virtue.”

Appellant insists that he was not charged with a public offense, in that the indictment fails to state that he kept a house of ill fame in the city of Muncie, Delaware county, Ind., or to sufficiently locate the place where the house was kept; that it fails to name the persons who resorted to the house for lewd purposes or to state that the names of such persons were unknown to the grand jury.

The allegations of the indictment at bar are substantially the same as those used in the affidavit in the case of Eley v. State, 183 Ind. 161, 108 N. E. 516, and upon the authority of that case the rulings of the trial court on the motions to quash and in arrest of judgment were correct. See, also, Winegardner v. State, 181 Ind. 525, 104 N. E. 969;State v. Bridgewater, 171 Ind. 1, 5, 85 N. E. 715;Donovan v. State, 170 Ind. 123, 83 N. E. 744.

The admission of certain evidence, over objection, verdict contrary to law and not sustained by sufficient evidence are causes relied upon by appellant in his motion for a new trial.

Without objection or motion to strike out the answer, an inmate of the Indiana Girls' School and the first witness for the state, without any foundation therefor, was asked if she knew the location of the house “kept by John Sullivan during the latter part of the year 1922.” Answer, “Yes, sir”; and, in answer to further questions, identified the house by a sign on it and gave its location by street number and name of street; passed it many times, but was never in it but the one time. The second witness for the state, said to be the probation officer for the circuit and juvenile courts of Delaware county, on her original examination, without any preliminary showing, was permitted to answer in the affirmative, over objection, the question if she knew “where the house was located during the time from the 1st day of October, 1922, until the 1st day of January, 1923, that was kept by John Sullivan,” and to answer in the affirmative the further question, over objection, if she was “acquainted with the general reputation of the house at 401 East Willard street, kept by John Sullivan from the 1st of October, 1922, until the 1st day of January, 1923, as to being or not being a house of prostitution.” Both of these witnesses testified that they did not know appellant, nor had either ever seen him in, around, or about the house in question, unless he was the man seen by the first witness under the circumstances when she, with three others, a girl and two men, at about 8 o'clock in the evening of December 24, 1922, went to the house and was met at the door by a lady with a baby in her arms, from whom one of the men rented a room, for what length of time she did not know, but from other uncontradicted evidence it appears that the rental was for one-half week, for which $2.50 was paid. This witness also stated that at about 9 o'clock in the evening, and while she was in bed, a man she supposed was Sullivan came to the door of the room,...