Winslow v. State

• Decision Date: 25 October 1892
• Docket Number: 595
• Citation: 32 N.E. 98,5 Ind.App. 306
• Parties: WINSLOW ET AL. v. THE STATE
• Court: Indiana Appellate Court

32 N.E. 98

5 Ind.App. 306

WINSLOW ET AL. v. THE STATE

No. 595

Court of Appeals of Indiana

October 25, 1892

From the Porter Circuit Court.

Judgment affirmed.

A. L Jones and F. P. Jones, for appellants.

A. G Smith, Attorney General, for the State.

BLACK J. CRUMPACKER, J., did not take part in the decision of this case. FOX, J., dissents.

OPINION

BLACK, J.

The appellants, Isaac Winslow and Anna Winslow, were prosecuted under section 1994, R. S. 1881, which provides that "Whoever keeps a house of ill-fame, resorted to for the purpose of prostitution or lewdness, * * * shall be fined," etc.

We are required only to determine whether or not the verdict against the appellants was contrary to the evidence.

If there was some evidence tending to prove every material fact alleged in the indictment, this court can not assume to weigh the evidence, and thereupon to interfere with the result reached in the trial court. Van Dolsen v. State, 1 Ind.App. 108, 27 N.E. 440; Baker v. State, 2 Ind.App. 517, 28 N.E. 735; Squires v. State, 3 Ind.App. 114, 28 N.E. 708; Campbell v. State, 3 Ind.App. 206, 29 N.E. 418.

The appellants did not introduce or offer any evidence. The evidence introduced by the State established beyond interference by this court every material allegation of the indictment, if it can be held that there was any evidence tending to prove that the house of ill-fame kept by the appellants was resorted to for the purpose of prostitution or lewdness. Proof that a house was resorted to for the purpose of such a secret vice will often, if not ordinarily, of necessity be by circumstantial evidence. Whatever inferences men of average intelligence might reasonably draw from facts, the jury may draw from circumstances proved to their satisfaction. It was shown by many witnesses and without any contradiction that it was and for a long time had been a house of ill-fame.

One witness who lived near the house in question testified that he had seen people walking from the street to the door of the house and from the door to the street, most at night time.

Another witness who also lived near the house, who testified that it was a disreputable place and much talked about among the neighbors and a great eye-sore to them, also testified that she had seen people going in and out of the house; that she could not state the names of the men; that there were some women. She gave the names of three women whom she said she had seen go there, and she testified that she was acquainted with the general reputation of these three women; that the reputation of two of them, named, was not good and the other was suspicious.

Another witness, whose recollection as to the time was not definite, testified that she had seen persons going into the house about seven or eight o'clock in the evening, she could not say how frequently.

The jury having inferred that this resorting to the house was for the purpose of prostitution or lewdness, and the court having refused to grant a new trial, we can not disturb the result reached.

The judgment is affirmed.

CRUMPACKER, J., did not take part in the decision of this case.

DISSENT BY: FOX

FOX J.--A careful examination of the record in this case convinces me that the judgment of the court below ought to be reversed, for the reason that the evidence was insufficient to justify a conviction. Verdicts of juries are entitled to respect when they rest upon a solid foundation, but I am not a believer in the sanctity of verdicts to the extent that a wrong may thereby be galvanized into a right. I do not share the veneration that is sometimes manifested and expressed for the judgment of juries. As to whether a verdict is justified or not by the evidence is simply a question of fact. If it is not, then to permit it to stand is a denial of justice. It is a matter of universal knowledge that juries, as a general rule, are unlearned in the law, and without experience in the trial of causes. It is made the duty of the trial judge to instruct them as to matters of law involved in the trial before they retire for deliberation. After they have formulated their verdict, they are required to return it to him for his approval. If it is contrary to the law or the evidence, it is his duty, if the proper motion is made, to set it aside. It is also his duty to determine the competency of testimony, and thus say what evidence shall or shall not be considered by the jury in making their verdict. Every step that is taken in the case, from the beginning of the trial until the rendition of the judgment, is under his supervision, and it is made his duty to see that justice is administered, and his power is ample.

That the rule governing a trial in an appellate court is different, concerning the propriety of setting aside verdicts, I admit, and this for substantial reasons. The reason for this difference is well stated in Cox v. State, 49 Ind. 568; Adams v. Stringer, 78 Ind. 175; Buskirk Prac. 237; Dewey v. Chicago, etc., R. R. Co., 31 Iowa 373. But nowhere, in my opinion, is the rule stated with greater force than by BUSKIRK, J., in the case of Madison, etc., R. R. Co. v. Taffe, 37 Ind. 361. For this reason I make a liberal quotation from his opinion in the case:

"The reason of the rule is, that the weight which is due to the testimony of witnesses very greatly depends upon the appearance, manner, and conduct of the witnesses upon the witness stand, their intelligence, their willingness or unwillingness to testify fully and frankly upon all matters within their knowledge, without reference to whether it affects the one party or the other, and whether they are free from passion, prejudice, or undue influence. It is a very easy matter to tell the truth, but it is a very difficult matter to testify falsely and not be detected. The witness that has nothing to testify about but what he knows, is open, frank, and undisturbed in his manner, while there is an indefinable and indescribable manner and look about a witness who is swearing falsely. The judge, counsel, and jurors have the opportunity of observing all these matters, and, as a general rule, can determine, with great accuracy, whether the witness is telling the truth or a falsehood. When the evidence comes here on paper, we have nothing but the words of the witness, and they are not always correctly taken down. With us, the testimony of an untruthful and unreliable witness, who is unimpeached, has as much weight as the testimony of the best and most reliable man in the community, for we have no means of telling the one from the other. We are deprived of all the means of detecting falsehood and discovering the truth enjoyed by the judge and jury in the court below. Great and manifest injustice would be done if we should attempt to weigh the evidence and determine the credibility of witnesses. The reason of the rule does not apply to the circuit and common pleas judges; for they have the same means and opportunity of observing the witnesses, and determining the weight that is due their testimony as are enjoyed by the jury. The rule of this court was founded, and has been adhered to, upon the supposition that the judges of the lower courts have faithfully and fearlessly discharged their duties in refusing or granting new trials, as the justice of each case may require. If we should ever have reason to believe that the judges below apply the same rule in granting, or refusing to grant, a new trial that we do to reversing a case upon the weight of evidence, then we will have to change our rule; for great and glaring injustice would result if both courts were governed by the same rule. The rule does not apply in this court when the case was tried upon documentary evidence; for in such case we have the same means of examining and weighing the evidence as the judge or jury in the court below."

The rule to be applied in courts of last resort has been formulated and stated in a variety of ways by this court and by the Supreme Court, so that it is not an easy task by any means to state exactly what the rule is, if it can be said that any exists. The rule has been stated and discussed to some extent in the following cases: Hoagland v. Moore, 2 Blackf. 167; Kendall v. Hall, 6 Blackf. 507; Calkins v. Evans, 5 Ind. 441; McVicker v. Pratt, 5 Ind. 450; Cahill v. Vanlaningham, 7 Ind. 540; O'Herrin v. State, 14 Ind. 420; Hollingsworth v. Picking, 24 Ind. 435; Medler v. State, ex rel., 26 Ind. 171; McCaw v. Burk, 31 Ind. 56; Cox v. State, 49 Ind. 568; Hayden v. Cretcher, 75 Ind. 108; Long v. State, 95 Ind. 481; Doles v. State, 97 Ind. 555; Clayton v. State, 100 Ind. 201; Kleespies v. State, 106 Ind. 383, 7 N.E. 186; Hudson v. State, 107 Ind. 372; Skaggs v. State, 108 Ind. 53, 8 N.E. 695; Garrett v. State, 109 Ind. 527, 10 N.E. 570; Delhaney v. State, 115 Ind. 499, 18 N.E. 49. In this court the statement of the rule has been without uniformity as well as in the Supreme court. See Van Dolsen v. State, 1 Ind.App. 108, 27 N.E. 440; Baker v. State, 2 Ind.App. 517, 28 N.E. 735; Squires v. State, 3 Ind.App. 114, 28 N.E. 708; Campbell v. State, 3 Ind.App. 206, 29 N.E. 418.

In a number of the cases above cited, in stating the rule, the Supreme Court has said that "even a criminal case will not be reversed upon the mere weight of testimony," and again, "where there is a conflict in the testimony of witnesses the verdict of a jury will not be disturbed, although it may not seem to be supported by a preponderance of the evidence." This, in the main, I admit to be correct, for the reason given in the case of Madison, etc., R. R. Co. v. Taffe, supra, above referred to.

In Baker v. State, supra, the opinion was given by the learned judge who gives the opinion of the majority of the court...