Cole v. State
| Decision Date | 20 November 1922 |
| Docket Number | 277 |
| Citation | 245 S.W. 303,156 Ark. 9 |
| Parties | COLE v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Greene Circuit Court, Second Division; R. E. L. Johnson Judge; affirmed.
Judgment affirmed.
M P. Huddleston, for appellant.
J S. Utley, Attorney General, Elbert Godwin and Wm T. Hammock, Assistants, for appellee.
Appellant was tried and convicted under an indictment reading as follows: "In the county aforesaid, on the 1st day of April, 1922, the said Elmer Cole did unlawfully, knowingly and feloniously accept and receive $ 25 in gold, silver and paper money, lawful money of the United States, of the value of $ 25, without consideration, from the proceeds of the earnings of Dollie Cross as a prostitute, and who was then and there engaged in prostitution, against the peace and dignity," etc.
There was a demurrer to the indictment, and a motion was filed in arrest of judgment, the basis of each pleading being that the facts stated in the indictment do not constitute a public offense. The alleged defect in the indictment is that it does not charge that the alleged prostitute was a female.
Appellant ran a hotel in the city of Paragould, and Dollie Cross was employed ostensibly as a chambermaid, and, according to her testimony, she performed some duties in that respect, but she also testified that her real occupation and principal source of income was to meet men in the hotel for immoral purposes, and that she had a contract with appellant under which he sent men to her room in the hotel for that purpose, and that she paid appellant fifty cents for each man so sent.
It is insisted that the testimony of the witness Dollie Cross, if true, makes her an accomplice, and that the court erred in not so instructing the jury, and in refusing to submit to the jury the question whether or not her testimony made her an accomplice.
Over appellant's objection the court admitted testimony showing that appellant's hotel had the reputation of housing women of bad morals, and Martha Wilson and Ira Polsten, two women, were permitted, over appellant's objection, to testify that defendant had employed each of them under contracts similar to the one testified about by the witness Dollie Cross.
Over appellant's objection a witness named McClain was permitted to testify that on one occasion he had intercourse with a girl, not Dollie Cross, at this hotel, but he paid the porter for the use of the room, and did not at any time see appellant or have any conversation with him on the subject.
Witnesses Smith, Wallace and Clark were called by the State and permitted to testify, although their names did not appear upon the indictment, nor upon the list of witnesses furnished by the State to appellant. Before the commencement of the trial appellant had made a motion that he be furnished a list of the witnesses examined before the grand jury, and the motion was sustained by the court, and a list of all the witnesses was furnished appellant, except the three stated.
Defendant subpoenaed twenty- five witnesses who had been patrons of the hotel, and fifteen of them testified that they had been accustomed to stopping at appellant's hotel for a long period of time, and that they never observed any indecent conduct about the premises, and that they had never been solicited by appellant, or any of his employees, for engagements with women working at the hotel, and that said hotel was conducted quietly and orderly. After these fifteen witnesses had testified as stated, appellant offered to call the ten other witnesses to testify to the same effect. The court declined to permit these witnesses to be called, but directed appellant to dictate into the record in the presence of the jury the substance of the testimony of the ten witnesses.
Exceptions were also saved to the action of the court in giving and in refusing certain instructions, and in refusing to grant a new trial on account of newly discovered evidence.
The indictment in this case was based upon section 2705, C. &. M. Digest, which reads as follows:
We think the indictment sufficiently charges a violation of the statute quoted. It is true there is no express allegation that Dollie Cross is a woman, but the indictment does describe her as a prostitute and alleges she was engaged in prostitution.
The word prostitute may be a verb, an adjective, or a noun, but it is used in the indictment as a noun, and, when used as a noun, its principal definition is "a woman given to indiscriminate lewdness; a strumpet; a harlot." Webster's New International Dictionary. It is true that the noun is also defined by the same authority as "a base hireling; a mercenary man or woman."
The word prostitute may therefore mean "a base hireling; a mercenary man or woman," but the indictment not only charges that Dollie Cross was a prostitute, but it also charges that she was engaged in prostitution, the dictionary meaning of which word is an "act or practice of prostituting the body; common lewdness of a woman."
"Act of setting one's self to sale, or of devoting to base or unworthy purposes what is in one's power, as, the prostitution of abilities; prostitution of the press." Webster's New International Dictionary.
The section of the statute quoted above is section 3 of act 105, of the Acts of 1913 (Acts 1913, p. 407), commonly called the pandering act, and a reading of this section 3 in connection with the other sections of the act makes it plain that the word "prostitute," as employed throughout the act, is itself a designation of a female person. For instance, section 1 of the act makes it unlawful for any one to procure a female inmate for a house of prostitution; or to induce a female to become a prostitute, etc. Other portions of the statute, which need not be quoted, treat the word "prostitute" as designating a female, and the word "prostitution" as meaning common lewdness of a woman.
We conclude therefore that the allegations that Dollie Cross was a prostitute, engaged in prostitution, sufficiently designates her as a female within the meaning of the statute.
We think the court properly refused to charge the jury that Dollie Cross was an accomplice, or to submit that issue to the jury. The penalty of the statute quoted is directed against the person who knowingly accepts a valuable thing without consideration, from the proceeds of the earnings of any woman engaged in prostitution. The thing made unlawful is not the illicit intercourse in which the female participates, but the acceptance of money thus earned without consideration. The act is directed against the person, whether man or woman, who, without consideration, accepts the...
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Clements v. State
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...to limit the number of witnesses whose evidence is cumlative. See Sheppard v. State, 120 Ark. 160, 179 S.W. 168, and Cole v. State, 156 Ark. 9, 245 S.W. 303. IV. State's Instruction No. 11. The Court gave this instruction: 'The killing being proved, the burden of proving circumstances of mi......
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Clements v. State, 4141.
...or an apparent injustice has been done. Ward v. State, 85 Ark. 179, 107 S.W. 677; Young v. State, 99 Ark. 407, 138 S.W. 475; Cole v. State, 156 Ark. 9, 245 S.W. 303. No abuse of discretion is shown". Hulen v. State, 196 Ark. 22, 28, 115 S.W. 2d It is next insisted that the trial court erred......
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