People v. Simpson

TYLER, P. J.

Defendant was charged, tried, and convicted of the crime of pimping as defined by the statute (Stats. 1911, p. 10). A motion for a new trial was made and denied. This appeal is from the judgment and order. The evidence is of a sordid character, but it is unnecessary for a discussion of the case to review it extensively. Briefly stated, it discloses the following facts: Defendant operated in the city of Fresno what is designáted in the record as a massage parlor. The establishment was frequented by male patrons and the duties of the female attendants employed by defendant was to bathe and massage nude men. Sexual commerce was also indulged in. There is evidence to show that defendant was familiar with this fact and that a charge of five dollars was made for a bath, massage, and intercourse. There is also evidence to show that the female attendants operated under a percentage basis, the defendant receiving his share of the money derived from the enterprise.

The grounds relied upon for a reversal of the judgment and order are: (1) That the court abused its discretion in not granting defendant’s second motion for a continuance of the trial; (2) insufficiency of the evidence to bring the case within the provisions of the statute creating the offense; (3) that the conviction is based upon the uncorroborated testimony of an accomplice; (4) error of the trial court in failing to instruct the jury as a matter of law that a certain witness was an accomplice; (5) error in the admission of certain testimony. In support of the first ground urged for a reversal it is claimed that the trial court abused its discretion in not granting a continuance. Defendant was arraigned November 28, 1925, and his trial was set for December 6th following. Upon the last-named day he asked for and was granted a continuance on account of the absence of two witnesses, one of whom was Dorothy Dalton, a woman who had been employed by him as an attendant in his business. Defendant expected to prove by this witness, among

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other things, that sexual commerce was not practiced in the establishment, but that, on the contrary, defendant always insisted upon proper conduct on the part of the employees of the place. Upon the granting of the motion the court continued the trial until January 11, 1926. When the case was again called for hearing, defendant moved for a continuance upon the former ground and filed affidavits in support of his motion. It appears therefrom that after the first continuance was granted defendant had located and interviewed Dorothy Dalton at a certain hotel in the city of Fresno and he thereafter placed a subpoena in the hands of the sheriff commanding her presence at the trial. No subsequent inquiry was made by him to ascertain if the witness had been served until January 6, 1926, when he was informed by the sheriff that service had not been had for the reason that the witness had left the hotel. The facts recited in the affidavits indicated that the witness was at all times in the city of Fresno. In denying the motion for a second continuance the trial court, concluded that under all the circumstances defendant had not used reasonable diligence to locate the witnesses. The action of a trial court in disposing of a motion for a continuance is not subject to interference on appeal except on a showing of abuse of discretion. No such showing is here made. Defendant had already been granted a continuance to secure the attendance of his witnesses, and the affidavits in support of his motion for the second continuance, except for the recital that a subpoena had been placed in the hands of the sheriff for service, contained nothing to indicate that any effort had been made to procure their attendance, or v/hich would justify this court in holding that there was any abuse of discretion in the denial of the application. Nor was there any showing that the witnesses could be secured in the event that a continuance was granted. Motions of this character rest very much in the discretion of the trial court and it is only in a plain case of the abuse of such discretion that this court will interfere.