Holland v. State

• Citation: 163 S.W. 781,111 Ark. 214
• Parties: HOLLAND v. STATE
• Decision Date: 02 February 1914
• Court: Supreme Court of Arkansas

163 S.W. 781

111 Ark. 214

HOLLAND v. STATE

Supreme Court of Arkansas

February 2, 1914

Appeal from Polk Circuit Court; Jefferson T. Cowling, Judge affirmed.

Judgment affirmed.

Elmer J. Lundy, for appellant.

1. The indictment is demurrable. The language of the act is not sufficient; the facts should be set out so defendant could know what to answer. 38 Ark. 543; Ib. 519; 68 Ark. 251; 58 Id. 35; 80 Id. 310; 94 Id. 245.

2. The prosecuting attorney's remarks were prejudicial. 70 N.E 27; 67 Id. 183; 74 Ark. 256; 38 Cyc. 1476.

3. The letters evidence of wife were incompetent under the act.

4. The crime, if committed, was committed in Oklahoma, out of the jurisdiction of the court. 23 Ark. 156; 54 Id. 371; 32 Id. 565; 30 Id. 41; 46 F. 653; 22 S.W 463; 115 Mo. 480; Bish. on Stat. Crimes (2 ed.), § 640; 74 S.W. 369, 12 S.W. 247; 105 N.W. 838; 142 Mich. 531.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

1. The indictment follows the language of the statute. Boyle v. State, 110 Ark. 318; 167 Ill.App. 557; Brown v. State, 109 Ark. 373.

2. There was no prejudice in the prosecuting attorney's remarks in his opening statement.

3. The letters were competent and relevant. Boyle v. State, 110 Ark. 318; Acts 1913, No. 106, § 7. So was her evidence. Ib.

4. There is no error in the court's charge.

OPINION

MCCULLOCH, C. J.

Appellant was convicted of the crime of pandering as defined in a statute enacted by the General Assembly of 1913, which reads, in part, as follows:

"Any person who 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, shall take, place, harbor, inveigle, entice, persuade, encourage or procure any female person to enter any place within this State in which prostitution is practiced, encouraged or allowed, for the purpose of prostitution, or not being her husband, for the purpose of sexual intercourse, or 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 her husband, for the purpose of sexual intercourse." Acts 1913, page 408.

The offense is charged in the indictment in the following language:

"The said J. R. Holland on the 25th day of August, in the county and State aforesaid, did unlawfully and feloniously, by promises, threats, violence, devices and schemes, fraud and artifice, duress of person and goods and the use of his position of confidence and authority, inveigle, entice, persuade, encourage and procure one Norma Cantrell to come into this State for the purpose of sexual intercourse, the said J. R. Holland not being then and there the husband of said Norma Cantrell, against the peace," etc.

There was a demurrer to the indictment, which the court overruled, and that ruling of the court is assigned as error.

The charge in the indictment is founded, as will be observed, upon the latter clause of the portion of the act quoted above, and the indictment follows closely the language of the statute.

Under a proper interpretation of the statute, the clause making it an offense 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 for the purpose of sexual intercourse, where the marriage relation does not subsist, is limited by the preceding phrase, "any person who 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."

The words just quoted, when taken together, constitute one offense, but provide several modes by which it may be committed, and the indictment, in following the language of the statute, does not set forth more than one offense. Keoun v. State, 64 Ark. 231, 41 S.W. 808; Grant v. State, 70 Ark. 290, 67 S.W. 397.

Nor do we think the indictment was faulty in failing to describe the offense with more particularity than by following the language of the statute. It is ordinarily sufficient to charge a statutory offense in the words of the statute which creates it; but that rule is subject to the qualification that "when a more particular statement of the facts is necessary to set it forth with requisite certainty they must be averred." State v. Graham, 38 Ark. 519; St. Louis & S. F. Rd. Co. v. State, 68 Ark. 251, 57 S.W. 796.

In this case, however, the language of the statute itself is sufficient to describe the offense with certainty, for the charge, as couched in the language of the statute, apprises the accused of the particular act he is alleged to have committed.

It is next contended that the court erred in permitting the introduction in evidence of letters written by appellant to the injured female which were written before they came into the State, and also in permitting other conduct of the appellant committed in another State to be introduced in evidence.

The letters written by appellant and his other conduct related to the inducement to the injured female, and tended to establish the inducement under which the female was brought into the State, which constituted one of the essential elements of the offense. The relation between the parties arose by correspondence between appellant and the woman while he was at Bentonville and Rogers, in this State, and the woman lived in Missouri. She was induced to come to Siloam Springs Arkansas, under the promise set forth in the letters that appellant would employ her as a musician in his picture show. Appellant met her at Siloam Springs, and, after installing her at a hotel, induced her to yield to his embraces, and, either at that time or subsequently, promised to marry her. They went from there to a point in the State...