Kennedy v. State

• Decision Date: 17 December 1919
• Docket Number: (No. 5556.)
• Citation: 216 S.W. 1086
• Parties: KENNEDY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1086

216 S.W. 1086

KENNEDY v. STATE.

(No. 5556.)

Court of Criminal Appeals of Texas.

December 17, 1919.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Dave Kennedy was convicted of procuring, and he appeals. Reversed and remanded.

Veale & Lumpkin, of Amarillo, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The indictment contains several counts. The first, upon which the conviction was had, charged that—

"Dave Kennedy did then and there unlawfully and willfully attempt to procure, and did procure, and was concerned in procuring Fannie Doty, a female, as an inmate of and for a house of prostitution in a house and place in said county and state where prostitutes then and there resorted for the purpose of plying their vocation as such prostitutes, and were so kept, as the said Dave Kennedy then and there well knew, contrary to the statutes in such cases made, and provided and against the peace and dignity of the state."

The sufficiency of this indictment was questioned in a motion to quash. The statute upon which it is founded makes it an offense to "procure, attempt to procure, or be concerned in procuring a female inmate for a house of prostitution." The complaint is that the "acts or omissions" of the appellant by which he is charged to have procured the female inmate are not disclosed by the pleading. To this the state answers that it is enough that the indictment followed the language of the statute. This rule applies in those instances only in which the indictment is framed under a statute which defines the act or acts constituting the offense in a manner that will inform the accused of the nature of the charge against him. The test is not that the indictment follows the statute, but that it is in compliance with the law prescribing the requisite of an indictment. An indictment under our statutes is "the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense," and "the offense must be set forth in plain and intelligible words." Texas Code Crim. Procedure, arts. 450 and 451. The bill of rights declares that one accused of crime "shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. * * * And no person shall be held to answer for a criminal offense, unless on indictment of a grand jury." Constitution, art. 1, § 10. The statute declaring the requisite of an indictment but confirms the law as it is contained in the Constitution. Hewitt v. State, 25 Tex. 722; Williams v. State, 12 Tex. App. 399; State v. Duke, 42 Tex. 462; Huntsman v. State, 12 Tex. App. 636; Johnson v. State, 42 Tex. Cr. R. 102, 58 S. W. 60, 51 L. R. A. 272; Vernon's Texas Crim. Statutes, vol. 2, p. 192; Harris's Texas Constitution, p. 86, note 41.

In Gray v. State, 7 Tex. App. 13, it is said in substance that, where following the language of the statute in charging the offense will fulfill the requirements of the indictment mentioned, the use of the language of the statute will be sufficient; but, where the language of the statute alone would be insufficient to set out the offense in compliance with the rule, it is essential that averments be made showing the existence of the additional facts necessary to constitute the offense. This principle is reaffirmed in many cases. See Kerry v. State, 17 Tex. App. 178, 50 Am. Rep. 122; Bryan v. State, 54 Tex. Cr. R. 18, 111 S. W. 744, 16 Ann. Cas. 515; Huntsman v. State, 12 Tex. App. 646; Dunlap v. State, 40 Tex. Cr. R. 590, 51 S. W. 392; Hoskey v. State, 9 Tex. App. 202; Bigby v. State, 5 Tex. App. 101; McAfee v. State, 38 Tex. Cr. R. 124, 41 S. W. 627; Bishop's New Crim. Procedure, vol. 2 p. 487.

It is stated in Bishop's New Crim. Procedure, vol. 2, § 623, as follows:

"The doctrine is that, since the indictment on a statute must follow, besides the special rules which govern it, those also which govern other indictments, when the statutory words come short of this, other appropriate ones expanding it further must be added."

The accused is entitled to a statement of the facts relied upon, and if these are not contained in the statute denouncing the offense, they must be supplemented by the pleader drawing the indictment. The statement of a legal conclusion or result will not suffice. Wharton's Crim. Procedure, vol. 1, § 196; Strickland v. State, 19 Tex. App. 519; Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035; La Grone v. State, 12 Tex. App. 426.

There are numerous acts which might result in procuring a female inmate for a house of ill fame. They might be acts amounting to fraud, force, or persuasion. In the present instance, according to the theory of the state developed under the evidence, the female was procured by means of a contract or agreement under which she was to receive certain compensation. To charge procuring is but the conclusion of the pleader. It is not a statement in...