State v. Emblem

29 S.E. 1031, 44 W. Va. 521, 1898 W. Va. LEXIS 29

• Court: West Virginia Supreme Court
• Decided: March 30, 1898
• Status: Published

Opinions

Holt, Judge :

On the 1st day of April, 1896, judgment was rendered in the criminal court of Ohio county against defendant Elizabeth Emblem and W. T. Emblem for fifty dollars each, on conviction of the offense of knowingly leasing and letting' to another a certain house for the purpose of being-used and kept as a house of ill fame. Elizabeth Emblem applied to the circuit court for a writ of error, which was refused, and fr*om such refusal she has appealed to this Court. The indictment is founded in section 10, chapter 149, Code, as amended by chapter 8, p. 27, Acts 1893.

The indictment, containing three counts, was demurred to as a whole. Was it error to overrule the same ? The first count charges that the defendant, on the 6th day of May, 1895, in the city of Wheeling, did unlawfully, willfully, and knowingly let a certain house there situated, describing it by street, number, etc., to a certain person, giving the name, with the intent that the said person keep the same as a common bawdy house and house of ill fame, and that the said Georgia Frank afterwards used and kept the said house as a house of ill fame, etc. Every material fact necessary to be proved to support a conviction seems to be plainly alleged, with due specifications of time, place, persons, etc., so that the demurrer was properly overruled.

During the prog'ress of the trial it was shown, without contradiction, that, at the time of the alleged offense, Georgia Eaning, alias Georgia Frank, used and kept the house in question under the following instrument (Exhibit A):

“Wheeling, Oct. 18, 1893. This memorandum of agreement, made between Elizabeth Emblem, of the city of Wheeling, county of Ohio, and state of West Virginia, party of the first part, and Georgia Laning, party of the second part, witnesseth : That the party of the first part agrees to sell and grant unto said second party the two-story brick house, situated on the west side of Eoff street, between 18th and 19th streets, in the city of Wheeling, and numbered (1811) eighteen hundred and eleven, for ($6,500.00) six thousand five hundred dollars, with interest at 8 per cent., payable quarterly in advance. Time granted to pay the principal is not to exceed 5 years froin date. The party of the second-is to pay all taxes on said house punctually when due. Should the party of the second part fail to comply with the above article of agreement, the party of the first part, agent or assign, shall enter and take possession of said premises without notice or demand, the same as though this agreement had not been made, and money paid will be forfeited as damages for the wear and tear of said premises. Payments of $300 on the principal can be made quarterly. Title to the property will be retained until two-thirds of the purchase money has been paid, and the residue is secured by a deed of trust to secure the deferred payments due thereon, and in consideration of the above the said Georgia Laning agrees to buy the said part of lot on said terms. The said party of the first part hereby acknowledges the receipt of $5.00 to bind the above contract. Witness our hands and seals this 18th day of October, 1893.

“Elizabeth X Emblem. [Seal.]

mark

“Georgia Laning. [Seal.]”

In consideration of this evidence, the defendants asked the court to give the following instruction, but the court refused to give the same : “Instruction. The court instructs the jury that if they believe from the evidence that the defendants and Georgia Frank made and entered into the contract of sale, introduced in evidence, of the property named in the indictment, and further believe that for one year next preceding the finding of the indictment in this case the said Georgia Frank occupied said property under said contract of sale, then the jury must find the defendants not guilty.” Whether this written instrument is on its face a contract of sale or a contract of lease is a question of law for the court, whose duty it was to construe the instrument and determine its legal effect. Railroad v. McKenna, 13 Lea. 280; 1 Thomp. Trials, § 1199; 2 Pars. Cont. 610, note. And in this 'case it was the duty of the court to tell the jury that this instrument was by its terms and in legal effect a contract of sale, and not a lease, and that if the said Georgia Frank, alias Georgia Lanning, occupied said property under said contract of sale, then the jury must find the defendants not guilty and this', for the plain reason that a sale, even with knowledge of the vendor that the house was intended to be used for such purpose, is not within the letter or the meaning of that clause of the statute. It is true that if there was any evidence before the jury tending to show that this sale was a mere shift or device intended to evade the statute, then it w-ould have been proper for the court to have added that, if the jury were convinced by the evidence, beyond all reasonable doubt, that the instrument was a mere sham, that the house was still owned by defendants or was under their control, and that defendants leased or let the house in question to Georgia Laning, alias Frank, for the purpose of being used or kept as a house of ill fame, then they should find the defendants guilty. For this reason defendant’s motion for a new trial should have been sustained; and it is here so ordered. Reversed and re manded.