Writ of error to the County Court of Adams county; the Hon.
FRANK W. BYRNS, Judge, presiding. Judgment affirmed.
MR. JUSTICE HIBBS DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 21, 1955.
The state's attorney of Adams county filed an information in the county court of that county charging that plaintiff in error kept and maintained at 223 North Third street, also known as the 223 Club, in the City of Quincy, a house of ill fame and place for the practice of prostitution and lewdness. The presiding judge of that county disqualified himself, and the county judge of Schuyler county presided at the trial. The jury found the defendant guilty and fixed his punishment at imprisonment in the county jail for one year and a fine of $200. A motion for judgment notwithstanding the verdict was denied. An alternate motion for new trial consisting of 101 assigned errors was likewise denied and the defendant was sentenced in accordance with the verdict. The cause comes here by writ of error.
The principal contentions of the plaintiff in error are that the court erred in denying a motion for judgment notwithstanding the verdict, in denying a motion for new trial, in the admission and exclusion of evidence and instructing the jury. By reason of such contentions it becomes necessary to set out in detail the evidence and the rulings of the court.
The conceded facts show that the plaintiff in error operated a tavern at the location stated. Prior to March 9, 1953 he and his wife, Audrie, were the owners in joint tenancy of the premises, but on the latter date conveyed the same to Bernice V. Lovelace, a sister of plaintiff in error, to whom no rent was paid. The city and state liquor licenses for that location were issued to the father of Audrie. The entrance to the barroom was from Third street on the east. The bar ran along the south side of the room, and to the west there was an archway without doors which led to a second room, in which were wash and toilet facilities, and to the right a stairway led upstairs to certain quarters, consisting of three bedrooms and a bath. In the barroom were six tables and four chairs at each table, about fifteen stools at the bar, one or two juke boxes, a cigarette machine and two pinball machines. Helen Reeves, referred to in the record and known in the tavern by the name of Geraldine or Gerry Sims, was employed to work there by plaintiff in error on May 1, 1953 and Drucilla Warren, known in the record and in the tavern as "Lucky" Smith, was employed by the defendant's wife, Audrie, on June 1st of the same year. They occupied two of the upstairs bedrooms. On the evening in question, June 6, 1953, plaintiff in error was not present at the time of the occurrences hereafter related, but his wife was tending bar.
The state's attorney of Adams county engaged two deputy sheriffs of a neighboring county, named Bliven and Payne, to ascertain whether plaintiff in error was conducting a house of ill fame. Each was deputized as special deputy sheriff in Adams county. The arrangement made was in the nature of a raid. The two special deputies were to enter the 223 Club and about fifteen minutes afterward the city police were to blow a whistle and enter. The two deputies were given $20 and promised pay for their services. They entered the premises about 9:45 p.m. on June 6, 1953. What occurred thereafter is controverted.
According to the evidence adduced by the State, the Sims girl was then sitting at the bar with her arm around a customer. Each deputy sheriff ordered a glass of beer. While consuming their beverages at the bar, Sims came up to Bliven and asked if he would like to go upstairs. The latter inquired if she had a girl for Payne. Whereupon Sims asked the wife of plaintiff in error then tending bar if "Lucky" was working, and upon receiving a negative answer brought "Lucky" Smith and the four of them went through the archway to the rear room, where the deputies were asked for money, and each paid $5 (marked money), which was then placed by the girls, or one of them, in a cigar box at the west end of the bar with a slip of paper. They then proceeded upstairs, Payne and Smith to one room, and Bliven and the Sims girl in another. Each girl directed her companion to undress and then went to the bathroom. On returning to their respective rooms, the girls proceeded to undress and were then arrested and handcuffed. Bliven permitted Sims to dress, but Payne refused to allow Smith to do so and threw a curtain around her. They were then taken downstairs and turned over to the Quincy police, who took them to police headquarters. After the raid one of the witnesses went back to the Club and found both plaintiff in error and his wife there, searched the register and cigar box, but found no money in either.
The defendant did not call his wife as a witness, but relied upon the testimony of Geraldine Sims, called as the court's witness, and of "Lucky" Smith. The Sims girl testified that her real name was Helen Reeves; that she had lived at Springfield all of her life; that when she came to Quincy, she did not know either the plaintiff in error or his wife or that there was such a place as the 223 tavern, but as she walked down the street, she saw a sign that a waitress was wanted, went in and was employed by Mrs. Williams; that she had never been a prostitute; that she received instructions not to take any money from men or to take them upstairs. She further stated that on the night of the raid "Lucky" Smith was menstruating and had gone upstairs alone; that she heard Smith holler and ran upstairs to see what was wrong, and when about half-way up, a man threw handcuffs on her; that she had never agreed to give plaintiff in error one-half of her earnings that she made as a prostitute or in any other way; that she did not solicit any men; that she used the name, Geraldine Sims, because she didn't want it to get back to her family where she was working; that no man in the tavern that night gave her $5, nor did she put any $5 bill in the cigar box, nor did she invite any deputies or any other men to go upstairs; that after she was taken to the police station she was not questioned by anyone, was asked her name and where she lived, and then was taken upstairs in the county jail. During her cross-examination by the state's attorney she was asked if she did not in the presence of certain officers say that on the average she took in from the practice of prostitution at Williams' place $50 a week, of which she gave half to plaintiff in error. She denied making such statement and also denied she had been working there as a prostitute and further denied that the officer who arrested her gave her $5. This cross-examination was conducted over the objection of counsel for plaintiff in error.
"Lucky" Smith testified that her true name was Drucilla Warren, that she was twenty-two years old and her home address was Springfield, Illinois; that when she arrived in Quincy, she walked about town, stopped at the Williams tavern and asked if he could use her as a bartender. She accepted employment as a waitress, but never at any time had she been engaged in any activities of prostitution; that she never did take any men upstairs and have acts of intercourse with them; that on the day in question she was menstruating; that just before the raid she was sitting on a bar stool at the bar, but went upstairs to clean up and was in the bathroom in the nude when a man came to the door, grabbed her and put handcuffs on her; that he wouldn't let her put her clothes on, but she grabbed a curtain from the bathroom window sort of a piece of drape and threw it around herself; that she did not take one of the two men upstairs with her that night; that he did not give her a $5 bill; that she did not put any $5 bill in a cigar box; that Sims had started upstairs when the handcuffs were put on her; and that she remained in the police station with Sims for about forty-five minutes before taken to the jail.
Both Sims and Smith testified that they were employed as barmaids and were paid at the rate of $18 per week plus tips and 10c for each drink the customers purchased for them, amounting to $1 or $2 a day, but each paid back to plaintiff in error $7 per week for their rooms and furnished their own food.
In rebuttal of the testimony of Sims the State produced three police officers of the City of Quincy, who testified that they were present in the office of the police matron of the City of Quincy on July 6, 1953 when Sims was interrogated following her arrest by the state's attorney, and that Sims admitted that she was employed at the Williams tavern as a prostitute and as such earned about $50 a week, half of which she gave to the defendant.
The court admitted over the objection of plaintiff in error the testimony of certain witnesses, three of whom were police officers, that the 223 Club, located at 223 North Third street, had a reputation as a house of prostitution. The grounds of the objection were that such evidence was immaterial and hearsay. The question of the reputation of such place was first injected into the cause by the plaintiff in error in the cross-examination of three of the People's witnesses. In order to establish that plaintiff in error was the operator of the tavern the State called among others, William Paul Carroll, C.F. Rost and Dorman E. Hall. Carroll testified that he was an employee of the Quincy Music Company and as such serviced a juke box at the tavern, at which time either the plaintiff in error or his wife was present and assisted in the checking and dividing of the money. Notwithstanding the reputation of the place was not then in issue by the proofs, counsel for plaintiff in error brought out on cross-examination that Carroll did not see any prostitution or signs of prostitution being there carried on, and then was asked, "And the reputation of that place was good, wasn't it?", to which he replied to his knowledge it was. Rost also serviced a juke box there and testified substantially the same under direct examination as the witness, Carroll. On cross-examination counsel for the defendant developed that the witness never saw or heard of any prostitution being carried on there. Hall, the father-in-law of plaintiff in error testified that the city and state liquor licenses were issued to him, and that in obtaining the licenses he was merely helping out his son-in-law and daughter. However, on cross-examination he was asked, "Did he (Williams) have a good reputation there for running a respectable place without any prostitution going on?", and he answered, "So far as I know."
The case of People v. Newbold, 260 Ill. 196 and other cases are cited in support of the claimed erroneous ruling. The Newbold case, supra, was a prosecution under the same section of the criminal code and it was there said at page 200: "It was competent for the witness to testify to the reputation of the plaintiff in error but not to give an opinion as to whether he kept a disorderly house." However, it was later said in People v. Berger, 284 Ill. 47 at page 50: "Most authorities agree that on a prosecution for keeping such a house as this the State may prove the character of the inmates and frequenters of the house, and many courts hold it can prove the reputation of the house."
We do not find it necessary to pass upon the admissibility of the reputation of the 223 Club. The plaintiff in error deliberately injected the issue into the case as above set forth and ought not to be heard to object to the propriety of adverse testimony offered by the People to meet the issue he first inserted in the cause. In Kuhn v. Eppstein, 239 Ill. 555, the court say at page 557: "If the evidence for the appellee was incompetent so was that for the appellants, and they ought not to be heard to complain that evidence of the same character which they offered was not proper." To the same effect is Bogart v. Brazee, 331 Ill. 160, 181; Moore v. Schoen, 313 Ill. App. 367, 371. Although these cases were civil cases we believe the rule there announced is applicable to criminal prosecutions.
Plaintiff in error also contends he was unduly restricted in the cross-examination of the People's witnesses who testified as to the reputation of his place of business. The only question involved upon which comment should be made is the rulings that the cross-examiner might not inquire as to what specific persons had said it was a place of prostitution. The general rule is that the scope of the cross-examination is within the sound discretion of the court, and unless that discretion is abused there is no error committed in restricting such examination. (People v. Nakutin, 364 Ill. 563, 571; People v. Jones, 343 Ill. 291, 295.) The issue here made by plaintiff in error was the general reputation of his place of business in that community. What any one person might have said to any of the witnesses on that subject is not material, but under the issue thus made, his cross-examination was properly limited to the ...