The State v. Howe
| Decision Date | 07 March 1921 |
| Parties | THE STATE v. POLLY HOWE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Randolph Circuit Court. -- Hon. A. W. Walker, Judge.
Affirmed.
Irwin & Haley and R. A. Higdon for appellant.
(1) The legislative act, Laws 1913, p. 219, under which defendant was tried, is unconstitutional in that the bill, as enacted, does not conform to the requirement of Section 28 of Article IV of the Constitution, in that said bill contains more than one subject, as is expressed in its title. The title even embodies the subject of removal of disqualifications of witnesses. While it is true that this title, as given in the caption, is not treated in the body of the bill, still this should enter into consideration of the point here made. A bill to comply with the Constitution should deal with subject-matters having natural connection. The provisions of this act must be germane to the subject. State v. Coffee & Tea Co., 171 Mo. 634; State v. Bixman, 162 Mo. 1. (2) Even conceding the constitutionality of the law it has no application to the facts as established by the evidence in this case. The evidence tends to prove only that the defendant was guilty of a misdemeanor, to-wit, a bawdy-house keeper. (3) The instructions given by the court might be said to approximately cover the case under the theory taken by the trial court, that a bawdy-house keeper who, by furnishing house, room, board, etc., and who received in consideration there for a share of the money earned by inmates, comes within the purview of the act under which defendant was tried. Appellant contends that such was not the intendment of the act, and that all the instructions given are error. (4) The trial court voiced his interpretation of the act, and in Instruction 1, complained of, gave an unwarranted extension to the act itself, by refusing to use the words of the statute, "without consideration," and by substituting instead the words "without any consideration therefor independent of said witness engaging in illicit sexual intercourse as aforesaid." (5) The court should have instructed the jury as to the meaning of the words "illicit sexual intercourse" used in Instruction 1, by defining the same, as the duty devolves upon the State to define the meaning of technical words when used in informations and instructions. (6) The State was permitted to offer testimony tending to prove the crimes of false imprisonment, tampering with a witness, the removal and secretion of witnesses, and other crimes, with none of which defendant stood charged. The admission of this testimony is clearly in violation of the general rule and cannot be justified under any exception to the rule that the courts of this State have ever recognized. State v. Duff, 253 Mo. 415; State v. Hyde, 234 Mo. 200; State v Hale, 156 Mo. 102; State v. Moberly, 121 Mo 604; State v. Young, 119 Mo. 495; State v. Reed, 85 Mo. 194; State v. Martin, 74 Mo. 547; State v. Goetz, 34 Mo. 85. (7) The court permitted the defendant to be cross-examined concerning many matters about which she did not testify in chief, all over the objections of defendant. This crossexamination even embraced examination as to other alleged crimes than that charged in the information. The cross-examination of defendant concerning conversations with Niece Bond and transactions alleged as occurring in Kansas City, Missouri; concerning abduction of witnesses, and concerning alleged threats to kill prosecuting witness if she did not sign statements, none of which had been gone into in defendant's examination in chief, are all violative of well-defined rules of evidence and were highly prejudicial to defendant. Added to this error, three witnesses were permitted to testify to impeach defendant on answers compelled on cross-examination concerning matters not gone into in her examination in chief, all to the prejudice of defendant. State v. Grant, 144 Mo. 56; State v. Hathborn, 116 Mo. 229; State v. Brannum, 95 Mo. 19; State v. Fullerton, 90 Mo. 411; Sec. 5242, R. S. 1909. (8) The defendant produced a receipted bill for money paid by defendant for medical services rendered to the proscuting witness. The court not only rejects this evidence, but reprimands defendant's counsel for offering same. We submit, the charge being specifically for money had and received without lawful consideration, that the defendant in all conscience should have been permitted to introduce a receipted bill for money paid in behalf of prosecuting witness.
Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, and A. L. Shortridge, of counsel, for respondent.
(1) The filing and overruling of a motion to quash must appear in the record proper. As the purported constitutional question is set forth in a motion to quash, the filing and overruling of which motion is not noted in the record proper, no constitutional question is raised for review. 4 C. J. 59, sec. 1647; 2 Cyc. 1041; State v. Scobee, 255 Mo. 272; State v. George, 221 Mo. 521; State v. Tooker, 188 Mo. 444; State v. Glasscock, 232 Mo. 291; State v. Wooley, 215 Mo. 675; State v. Finley, 234 Mo. 604. (2) The Act of 1913 deals with but one subject, pandering, which is clearly and solely expressed in the title of said act. Laws 1913, p. 219; 1 Sutherland, Statutory Construction, p. 249; Ewing v. Hoblitzelle, 85 Mo. 71; State v. Doerring, 194 Mo. 408; People v. Fegelli, 163 A.D. 579. A bill is not defective because it does not deal with all matters expressed in the title. 36 Cyc. 1032; State ex rel. v. Bronson, 115 Mo. 276; State v. Burgdoerfer, 107 Mo. 28. (3) The act in question created the substantive offense of pandering. Section 3 of said act designates one of the prohibited forms of said offense, and the evidence tended to prove the offense as charged under said section. Laws 1913, p. 219; State v. Fink, 186 Mo. 56; People v. Fegelli, 163 A.D. 577; Currington v. State, 72 Tex. Cr. 148. (a) Said Act of 1913, Section 3, was not aimed solely at the "cadet" who subsists directly on a prostitute's earnings. The purpose of the act was to stop all forms of money making from earnings by prostitution. People v. Fegelli, 163 A.D. 578; Currington v. State, 72 Tex. Cr. 148. (b) Said act did not repeal, and does not conflict, with the statute prohibiting the setting up and keeping of a bawdy house. Sec. 4754, R. S. 1909; 36 Cyc. 1095; 1 Sutherland, Statutory Construction, p. 463; State v. Brotzer, 245 Mo. 508. (4) The State introduced evidence tending to show that appellant, after her arrest, falsely imprisoned the prosecutrix, abducted and secreted her, forced her to make a false affidavit denying the offense, and persuaded her to agree to testify in appellant's behalf. This evidence was competent to show appellant's consciousness of guilt. 16 C. J. 555, sec. 1075; 12 Cyc. 398; Underhill, Crim. Ev. (2 Ed.) sec. 121; Kelly's Crim Law, sec. 289; State v. Alexander, 184 Mo. 274; State v. Alexander, 119 Mo. 461; State v. Matthews, 202 Mo. 148; Ryal v. State, 182 P. 257; State v. Keith, 47 Minn. 563; Conway v. State, 118 Ind. 490. (5) The Court properly permitted the State to cross-examine appellant with reference to her meeting with Niece Bond. State v. Sherman, 264 Mo. 381; State v. Ivy, 192 S.W. 736; Sec. 5242, R. S. 1909; 40 Cyc. 2714; State v. Avery, 113 Mo. 499; State v. West, 95 Mo. 143; State v. Baker, 262 Mo. 699.
On the 18th day of June, 1919, the defendant was convicted in the Circuit Court of Randolph County, and sentenced to a term of four years in the penitentiary, on the charge of receiving, without consideration, the sum of thirty dollars from Lillie Slingman, the money earned in prostitution, contrary to Section 3 of the Act of 1913, Laws 1913, p. 220. The information was filed in Pettis County, charging the commission of the offense in that county, and a change of venue was granted to Randolph County, where the case was tried. The defendant appealed.
The evidence shows that the defendant kept a house of prostitution in the City of Sedalia. Lillie Slingman became an inmate of that house some time in February, 1919, and remained there a week or more and then ran away, she testified. Her testimony, and that of two or three other inmates of the same house, was to the effect that she had an arrangement with the defendant whereby she was to pay three dollars for her board and give to the defendant half the money which she made while there. She earned sixty-three dollars while at the place, the proceeds of prostitution. The defendant took all the money as soon as Lillie collected it, and after deducting her half charged Lillie the balance for clothes, etc. The evidence is entirely clear and sufficient to show the character of the house kept by defendant, and the agreement between Lillie Slingman and defendant and the manner in which the money was earned.
The information was filed April 5, 1919, and the trial began on the 17th day of June and ended by a verdict on the 18th of June. Evidence was introduced by the State to show attempts by the defendant, between the time of the arrest and the trial, to get Lillie Slingman out of the way. She was persuaded to get into an automobile one day, was taken to Clinton and sent to Springfield; was for a time in Kansas City, and in Quincy, Illinois. She was brought back to Sedalia by the sheriff at one time from Joplin, Missouri, and another time from Quincy, Illinois. She had been in jail in order to hold her as a witness, just prior to the time she testified.
At one time, while apparently under the influence of the defendant in June, 1919, she made an affidavit in which she stated that all that she had previously said about...
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