Sisemore v. State

• Decision Date: 24 June 1918
• Docket Number: 60
• Parties: SISEMORE v. STATE
• Court: Arkansas Supreme Court

204 S.W. 626

135 Ark. 179

SISEMORE v. STATE

No. 60

Supreme Court of Arkansas

June 24, 1918

Appeal from Madison Circuit Court; Jos. S. Maples, Judge; reversed.

Judgment reversed, and cause remanded.

Sullins & Ivie, for appellant.

1. The indictment is bad on demurrer. It does not state facts sufficient to constitute a public offense under Act 105, Acts 1913, 407. The State had no power to pass the act under the Interstate Commerce law. Const. U.S. § 8, clauses 3 and 18, and the Mann Act, 8 U. S. Comp. St. 1916, § 8813; 16 F. 193; 223 U.S. 1; 227 Id. 308; 48 Mont. 456; Ann Cas. D 1915, 1017; 136 La. 658.

2. Incompetent testimony was admitted. The wife was disqualified. Kent's Comm. 179; Wigmore on Ev., § 2227 et seq. It was prejudicial. Underhill on Ev., § 185; Wigmore on Ev., § 2246; 40 Fla. 216; 137 U.S. 496; Underhill, Cr. Ev. 185; 57 Miss. 243; 119 Mo. 485; 127 Tenn 355; 186 S.W. 95; 63 A. 317.

3. The court erred in instructing the jury and there is no proof of the crime charged under the law. 126 Ark. 188; 111 Id. 214. The defendant was erroneously convicted.

John D Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The statute is valid so far as it affects this case. The statute is severable and the constitutional portion will be enforced. 6 R. C. L. 131, § 130; 91 Am. Dec. 262; 105 U.S. 305; 65 Kan. 240; 6 R. C. L., §§ 121, 130. Appellant violated the Mann act and our pandering statute by transporting a woman through or across the State for purposes of prostitution.

2. There was no error in requiring the wife to testify. Acts 1913, Act 105, § 7; 3 Wigmore on Ev., § 2196.

3. There was prejudicial error in the instructions. 126 Ark. 188; 71 Id. 86; 88 Id. 99; 102 Id. 302. The proof is sufficient to sustain the conviction.

OPINION

MCCULLOCH, C. J.

The indictment in this case is founded on an alleged violation of the act of February 26, 1913, against pandering (Acts 1913, page 407), and reads as follows:

"That the said T. J. Sisemore, in the county of Madison, in the State of Arkansas, on the 15th day of March, 1917, did unlawfully and feloniously transport and cause to be transported and did unlawfully and feloniously aid and assist in obtaining transportation for Julia Howard, a female person, through, across and out of the State of Arkansas and through and across Madison County, in the State of Arkansas, for the purpose of prostitution and with the intent and purpose to induce, entice and compel such female person to become a prostitute, and for the purpose of having sexual intercourse with her, the said Julia Howard, he, the said T. J. Sisemore, not being the husband of her, the said Julia Howard, against the peace and dignity of the State of Arkansas."

The language of the indictment is slightly confusing, but it was obviously the purpose of the pleader to frame the indictment under section 5 of the statute referred to above, which reads as follows:

"Any person who shall knowingly transport or cause to be transported or aid or assist in obtaining transportation for, by any means of conveyance into, through or across this State, any female person for the purpose of prostitution or with the intent and purpose to induce, entice or compel such female person to become a prostitute, shall be deemed guilty of a felony, and upon conviction thereof be sentenced to the penitentiary for not less than two nor more than ten years; any person who may commit this crime in this section mentioned may be prosecuted, indicted, tried and convicted in any county or city in or through which he shall so transport or attempt to transport any female person as aforesaid."

There is no attempt to charge an offense under section 1 of the statute, which makes it unlawful for any person "by promises, threats, violence, by any device or scheme, by fraud or artifice, or by duress of person or goods, or by use of any position of confidence or authority, or having legal charge," to "inveigle, entice, persuade, encourage or procure any female person to come into this State or to leave this State for the purpose of prostitution," or, not being married, for the purpose of having sexual intercourse. Holland v. State, 111 Ark. 214, 163 S.W. 781.

After eliminating, as surplusage, the confusing allegations in the indictment, we find enough left to constitute a charge of violating section 5, for there is a distinct allegation that the defendant did "transport and caused to be transported and did unlawfully and feloniously aid and assist in obtaining transportation for Julia Howard, a female person, through, across * * * the State of Arkansas, and through and across Madison County in the State of Arkansas, for the purpose of prostitution and with the intent and purpose to induce, entice and compel such female person to become a prostitute." The words "and out of" may be eliminated because they are not embraced in the statute, and also the words "and for the purpose of having sexual intercourse with her, the said Julia Howard, he, the said T. J. Sisemore, not being the husband of her, the said Julia Howard," may be eliminated for the same reason. Section 1 makes it unlawful, as before stated, for a person to entice or persuade a female by promises, threats, violence, etc., to come into this State or leave this State for the purpose of prostitution or for the purpose of sexual intercourse, where the guilty party is not the husband of such female; but section 5 has no reference to the transportation of a woman merely for the purpose of having sexual intercourse with her, whether or not the parties occupied toward each other the relation of husband and wife.

There was a demurrer to the indictment, but we think the charge is sufficient to constitute an offense under this statute.

It is also contended that the statute is void for the reason that it is an interference with interstate commerce, a subject over which the Congress of the United States has exclusive control. This subject was dealt with at length by the Supreme Court of the United States in a case passing on the validity of the act of Congress commonly known as the White Slave Traffic Act. Hoke v. United States, 227 U.S. 308, 57 L.Ed. 523, 33 S.Ct. 281. The statute was upheld as a proper exercise of the powers of the general government in the control of interstate commerce, but the court in the opinion clearly recognized the police powers of the State governments in the regulation of their internal affairs, and it was said that the exercise of the powers by the general government does not encroach upon the jurisdiction of the States. The instrumentalities of transportation between the States, including the transportation of passengers, is interstate commerce, and the control of Congress over this subject is supreme and exclusive, but men and women are not articles of merchandise, so as to make their own conduct a matter of interstate commerce, and the purpose for which they are brought into the State may be controlled by the State in the exercise of its police power. Our statute makes the purpose for which a woman is transported into the State the controlling element of the offense, and not the transportation itself. Therefore, the State has a right to impose the penalty without burdening interstate commerce.

We are of the opinion, therefore, that the power of the Legislature has not been exceeded in the enactment of this statute. The demurrer to the indictment was properly overruled.

There is no dispute about the facts of the case, and we are of the opinion that the testimony fails to make out a case of violation of the statute.

The parties resided in Madison County. Julia Howard was a widow. Defendant was married, but he and his wife had separated and a suit for divorce was pending. The defendant and Mrs. Howard began having sexual intercourse under a promise made by him to her that as soon as he obtained a divorce they would intermarry. Those relations continued between the parties and during that time they left Madison County and went to Oklahoma, and after remaining there a while they came back into Madison County. The proof shows that the defendant aided Mrs. Howard in procuring transportation and that after returning to the State he furnished her means of transportation into Madison County. They resided in Madison County for a time, still continuing the acts of illicit intercourse, but as soon as defendant procured the divorce from his former wife he and Mrs. Howard intermarried. There is no proof in the record at all tending to show any acts of intercourse on the part of Mrs. Howard with...