Batesville v. Smythe

• Citation: 211 S.W. 140,138 Ark. 276
• Decision Date: 07 April 1919
• Docket Number: 167
• Parties: BATESVILLE v. SMYTHE
• Court: Supreme Court of Arkansas

211 S.W. 140

138 Ark. 276

BATESVILLE v. SMYTHE

No. 167

Supreme Court of Arkansas

April 7, 1919

Appeal from Independence Circuit Court; Dene H. Coleman, Judge reversed.

Judgment reversed and cause remanded.

Samuel M. Casey, for appellant.

The court erred in holding that a single act of prostitution was not sufficient to make out an offense under the ordinance and that it was necessary to show that the illicit intercourse must be shown to have been for gain, that is, that money should pass. The plain terms of the ordinance do not require any such showing, and further do not require more than one act of intercourse to make the offense. The ordinance is well within the authority and powers of the city. 127 Ark. 268; Kirby's Dig., § 5438.

204 S.W. 626 defines a prostitute as one who for hire or without hire offers her body, etc. The city proved that defendant used her room for prostitution and offered to prove her reputation for morality was bad and that it was that of a prostitute. It was shown that her house was a place where loud noises, vulgar language and general disorderly conduct was had. The judgment should be reversed as the ordinance only provided for a fine. 205 S.W. 981; Kirby's Digest § 2626.

OPINION

MCCULLOCH, C. J.

Appellee was arrested and tried before the mayor of the city of Batesville, for violation of an ordinance of the city, which reads as follows:

"Sec. 211. That every bawd, prostitute or loose woman who shall use or occupy any room or tenement for the purpose of prostitution or place of assignation within the city of Batesville, and every person who shall rent or permit any room or tenement in his or her possession or control to be so used or occupied, and every male person visiting any room or tenement so used and occupied for the purpose of illicit intercourse shall be guilty of a violation of this ordinance."

The ordinance provides for punishment by a fine of $ 25 for each offense. On appeal to the circuit court from a judgment of conviction before the mayor, the case was tried before a jury, and the court, after the introduction of the evidence was completed, gave a peremptory instruction to the jury for acquittal of the accused.

Appellee was operating a restaurant in Batesville, occupying a room in a two-story building, and the evidence tends to show that she was detected having sexual intercourse with an unidentified man one night about 10 o'clock in the room. Appellee and this man were, according to the testimony, seen by several witnesses lying on the floor having sexual intercourse. The testimony also shows that the room occupied by appellee was a disorderly place, and that cursing and loud noises were permitted there frequently until late at night so as to disturb the family who occupied the second story of the building.

Counsel for appellant also offered to introduce testimony of certain witnesses to prove bad reputation of appellee in the community for morality.

No testimony was introduced on behalf of appellee.

We are of the opinion that there was sufficient testimony introduced to warrant a submission of the issue as to the violation of the city ordinance. If the proof had been confined to a single act of sexual intercourse in the house it would have been insufficient, for, in order to constitute an offense under this ordinance, the accused must be shown to have been a "bawd, prostitute or loose woman," and that she used or occupied the room "for the purpose of prostitution or place of assignation." It is thus seen that there are two elements constituting the offense; one the character of the woman as a prostitute or loose woman, and the use or occupancy of the room for the purpose of prostitution. It was, therefore, not sufficient to show merely that the room was used in a single instance for illicit sexual intercourse, without further proof that the woman using the room was a prostitute, and that she was using the room "for the purpose of prostitution or place of assignation."

The words employed in the ordinance are defined, so far as concerns the case now before us, in the opinion in the recent case of Sisemore v. State, 135 Ark. 179 204 S.W. 626, where we held that (quoting from the syllabus), "the word prostitute means a woman given to indiscriminate lewdness, and the word 'prostitution' means a state of existence for that purpose, and does not include merely the act of a...