Edwards v. Com.

• Decision Date: 21 April 1978
• Docket Number: No. 771146,771146
• Citation: 243 S.E.2d 834,218 Va. 994
• Parties: Beverley Gay EDWARDS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 834

243 S.E.2d 834

218 Va. 994

Beverley Gay EDWARDS v. COMMONWEALTH of Virginia.

Record No. 771146.

Supreme Court of Virginia.

April 21, 1978.

Paul M. Shuford, Richmond, for Commonwealth.

Thomas D. Bagwell, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

HARRISON, Justice.

In the court below Beverley Gay Edwards was indicted for "feloniously and unlawfully and knowingly" receiving "money from the earnings of a female engaged in prostitution not for a consideration deemed good and valuable in law". At the time of her trial on this indictment the court and jury also heard an appeal by the defendant of her conviction in the General District Court on a warrant charging that she did "unlawfully aid and abet in the commission of prostitution at 801 West Broad Street, Richmond, Virginia". At the conclusion of his evidence the Commonwealth's Attorney was permitted, over the objection of defendant, to amend the indictment to charge that defendant "did feloniously, unlawfully and knowingly receive money or other valuable thing for or on account of procuring for or placing in a house of prostitution or elsewhere any female for the purpose of using her to engage in unlawful sexual conduct".

After permitting the amendment the trial court stated that the defendant was entitled to a continuance. Defendant did not make such a motion and proceeded to introduce her evidence. At the conclusion of the introduction of all the testimony and of argument by counsel defendant was arraigned on the amended indictment. This was done over the objection of defendant, and she waived her right to plead anew to the amended indictment. The court then directed that a plea of not guilty be entered on behalf of the defendant to the amended indictment.

The jury found the defendant guilty of the offenses charged and fixed her punishment at confinement in the penitentiary for five years under the amended indictment, and confinement in the city jail for twelve months under the warrant. ¹ The court entered judgment on the jury's verdict, and this appeal was noted.

The issues in the case are whether the defendant has been convicted under two statutes for the same offense, and whether the trial court erred in amending the indictment and rearraigning the defendant. To resolve these questions we review the evidence and proceedings had in the lower court.

Beverley Gay Edwards was the manager of an operation at 801 West Broad Street in Richmond known as the "Joy Girl Dating Service" (Joy Girl). The Commonwealth contends that this was a business which sent prostitutes to men who called and requested their services. The evidence established that for each date Joy Girl received $15 which it designated as an "escort fee". The girls who were sent on dates earned no salaries but received "tips" from their customers.

On September 12, 1976, Officer Annette M. Kidwell, assigned to the Vice Division of the Richmond Bureau of Police, telephoned Joy Girl and advised the person who answered the phone that she was interested in getting a job there. She was told by a woman who identified herself as "Gay", and who said she did the hiring, that there were openings and to come to 801 West Broad Street the next evening. Kidwell testified that Edwards asked "if I had done this type of work before, working in a massage parlor" and that she replied in the affirmative.

The following evening Kidwell went to Joy Girl, was interviewed by the defendant, and agreed to report for work a day later. She said that Edwards explained that "it was an out call dating service; that customers called in. She sent girls out on assignments with these men". Edwards was seated at the front desk where she could take the telephone calls. Kidwell said that at no time during any of her discussions with Edwards did the defendant ever mention "doing any massages". Kidwell described the establishment as having flashing lights on the front, red curtains in the windows, and a sign which read either "Joy Massage", or "Joy Escort Dating", with a picture on it similar to the "Playboy Bunny type . . . female figure". She testified that Gay Edwards filled out an index card with her name, which she fictitiously gave as "Jeanie Cooper".

Kidwell said that while she was talking to Edwards during their first interview, "a customer came in and wanted to see the girls that were available". This customer was staying in Richmond and had seen the Joy Girl's advertisement in his motel, and "he wanted to view the girls". At that time there were three girls in the back room, Carolyn, Bobbie and Burnie, and they were all "brought to the front". Kidwell testified that the prospective customer said he was "very interested in the girls that she (Gay) had to offer" and that Gay told him to go back to his motel and to call back and she "would send him the girl he chose".

Kidwell said that the defendant explained to her the $15 escort service fee and told her that the money she made would be from "tips"; that "their tips were for what they did on the date"; and that Gay stressed, "I had to be very good to her customers and that some of these people had been using her service for a long time". They discussed the mode of transportation to be used from the Joy Girl building to the hotel or motel where the services were to be rendered. Kidwell said she told Gay that she had a driver who was a boy friend; that the defendant said she "did not want boy friends driving because they cause her trouble"; and that "they did not understand the kind of work that the girls had to do and it caused her problems".

Kidwell testified that when the question arose as to her working with particular types, defendant asked "if I did (blacks) and I told her no". She said the defendant volunteered that she did not "do blacks" either and did not expect her girls to, and that she did not have blacks working for her. She testified to a number of telephone calls that were received by defendant, and recalled one in particular during which defendant answered several questions concerning five of the girls, their appearances, color of hair, personalities and ages. Kidwell said that Edwards seemed "a little put out" when she hung up the phone and observed that some of the people who called "even want to know the size of the girl's ______". Kidwell said that a girl named Bobbie went out on a call but soon returned. When asked what was wrong she said the guy wanted a "half and half for $25. He said he had gotten it here before". Kidwell said that Gay's response to that was "damn", referring to the amount offered rather than the type of service demanded.

The defendant also explained to Kidwell the "charge system and the use of BankAmericard and Master Charge accounts". Kidwell said that she was told that "no matter what you do with the man" she was to write "services" on the charge slip. It also developed that the defendant kept a "bad card file" on which notations were made regarding the customers. If a girl returned and reported that her customer had been rough, drunk, outspoken or rude, suspected of having a venereal disease, or being on the Vice Squad, this would be noted on a card. Barbara Ann Turner, who worked at Joy Girl during 1976, testified that she would make from four to six trips a night, paying the $15 agency fees to the defendant, and keeping the tips, which amounted to $500 to $800 a week. She said that the defendant took the calls, supplied the drivers and gave the girls information about where to go. She testified that when she went on calls she performed sexual acts about "half of the time". From Turner's testimony, it appears that her employment interview with defendant was conducted along the same lines as was Kidwell's interview.

During the evening of October 14th, the defendant sent Kidwell out on two calls, one to a local motel and the other to a local hotel. In each instance Kidwell went to the room that was listed on a slip of paper given her by Edwards. The customer at the motel told Kidwell the type of sexual services that he desired and that he had $50 to $60 to spend. The customer used his BankAmericard, which was filled out by Kidwell and signed by the customer. Following the completion of the arrangement, Kidwell opened the door to the room and admitted three of her fellow police officers. They explained to the customer that Kidwell was a policewoman and asked him not to inform Edwards of her status. After this call Kidwell returned to Joy Girl and turned in the $15 agency fee.

Kidwell's call to the hotel followed the same pattern as the call she made to the motel. The customer at the hotel gave the witness $25 plus the $15 agency fee. When asked what he expected for the extra $25 he said, "I want to make love to you or whatever you call it." At this point Kidwell's fellow officers made their appearance, and the customer was requested not to inform Edwards of her status. When she returned to Joy Girl, she gave Edwards the $15 agency fee and requested that she be permitted to go home, claiming that she was ill and had been "hurt inside and had bad pains" as a result of sexual intercourse on her last call. She said that Edwards replied that "she thought that I was used to that kind of work and that was why I got the job. If you can't handle it tell me now, because if you can't, you may as well quit".

Involved in this appeal are three sections of the Code of Virginia. The warrant charges a violation of § 18.2-348, which provides:

"Aiding prostitution or illicit sexual intercourse. It shall be unlawful for any person or any officer, employee or agent of any firm, association or corporation, with knowledge of, or good reason to believe, the immoral purpose of such visit, to take or transport or assist in taking or transporting, or offer to take or transport on foot or in any way, any person to...