Martin v. Com.

• Decision Date: 03 May 1954
• Citation: 81 S.E.2d 574,195 Va. 1107
• Court: Virginia Supreme Court
• Parties: WILLIAM MOSES MARTIN v. COMMONWEALTH OF VIRGINIA

Page 574

81 S.E.2d 574

195 Va. 1107

WILLIAM MOSES MARTIN v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

May 3, 1954.

Carter & Bendall, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and C. f. Hicks, Assistant Attorney General, for the Commonwealth,

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

William Moses Martin was indicted by a grand jury, duly impanelled in the Corporation Court of Danville, upon two counts under sec. 18-97, Code of Virginia, 1950, commonly known as the pandering statute. The first count charged him with the crime of pandering. The second count charged that he: 'feloniously did place in his dwelling house, a certain female, to-wit, Helen Watlington for the purpose of causing her to cohabit with male persons, and did attempt to receive money or other things of value therefor'; that is, charged him with an attempt to commit the crime of pandering.

Upon his trial, the jury returned the following verdict:

'We, the Jury, find the defendant guilty as charged in Count two (2) of the within indictment of attempting to receive money or other things of value for causing the said Helen Watlington to cohabit with male persons, and fix his punishment at one (1) year in the penitentiary.'

The trial court overruled a motion to set aside the verdict of the jury as being contrary to the law and the evidence, and without evidence to support it, and sentenced the defendant to imprisonment in the penitentiary in accordance with the verdict.

The first error assigned is that the language of the second count of the indictment is not sufficient to charge a crime. This is based on the contention that the words, 'to cohabit with male persons' do not imply either sexual intercourse or connote illicit sexual relations.

In the first place, no objection was made to the validity of the indictment in the trial court. Moreover, the second count was sufficient as it stood. It clearly and specifically charged the defendant, in the language of the statute, with an attempt to violate the following provision of § 18-97:

'Any person who shall receive any 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 causing her to cohabit with any male person shall be guilty of a felony, and upon conviction thereof shall be confined in the penitentiary for not less than one year nor more than ten years.'

The indictment is drawn in the precise words of the statute. The clause 'to cohabit with male persons' must be construed in the light of the context in which it is found, that is, in connection with the language accompanying it, the surroundings associated with it, and the purpose in respect of which it is used. Burchfield v. Burchfield, 5 Wash. (2d) 359, 105 P. (2d) 286; Pearsons v. Pearsons, 282 Ill.App. 92, 97. The whole tenor of § 18-97 is to prohibit illicit and commercial prostitution and procurement. We have no difficulty in concluding that the legislature clearly intended the word 'cohabit,' as therein used, to definitely mean the having of illegal sexual intercourse.

In construing the word 'cohabit' as used in a divorce statute, we said in Tarr v. Tarr, 184 Va. 443, 448, 35 S.E. (2d) 401, 403:

'The literal or derivative meaning of the word 'cohabit' is to live together while its popular and often legal signification is to copulate. The latter interpretation was, in our opinion, intended by the Legislature.'

See DeBerry v. DeBerry, 115 W.Va. 604, 177 S.E. 440; Bracksmayer v. Bracksmayer, 22 N.Y.S. (2d) 110, 112.

The challenged count charges that the defendant did everything set out in the quoted portion of § 18-97, except receive the money, and it further charges that he attempted to do that. The intent to commit the offense of pandering is included in the phrase 'for the purpose of causing her to cohabit with male persons. ' It is a part of the acts alleged. Broaddus v. Commonwealth, 126 Va. 733, 101 S.E. 321. The second count sufficiently informed the defendant of the cause and nature of the charge against him. Saunders v. Commonwealth, 186 Va. 1000, 1005, 45 S.E. (2d) 307.

The final assignment of error is that the verdict of the jury is contrary to the law and the evidence, and without evidence to support it.

The evidence certified to us in narrative form, by stipulation of counsel, is as follows:

On the afternoon of November 21, 1952, the defendant, an elderly colored man, took Helen Watlington, a young colored woman, to a room occupied by him in the City of Danville, Virginia. On the following day, the defendant solicited three young colored men to have sexual intercourse with Helen Watlington, upon the payment of money to him, the defendant. These three men testified that Martin took them to his room, and showed them Helen Watlington lying in bed nude. One of the colored men solicited said that he went to get the necessary money; but when he returned, the defendant and Helen Watlington had been arrested.

Introduced as an exhibit was a written statement prepared by the police at the time of Martin's arrest, and signed by Helen Watlington, wherein she stated that she had had intercourse with other men while at Martin's room, and that Martin had told her he received money from those men for the use of her body. However, when she was examined as to the particulars of the written statement, she denied 'having had intercourse with any one other than Martin, or that Martin had received money from anyone for the use of her body.'

It is well settled in this jurisdiction that in criminal law an attempt is an unfinished crime, and is compounded of two elements, the intent to commit the crime and the doing of some direct act towards its consummation, but falling short of the execution of the ultimate design; that it need not be the last proximate act towards the consummation of the crime in contemplation, but is sufficient if it be an act apparently adopted to produce the result intended; mere preparation is not sufficient. Uhl, et als. v. Commonwealth, (1849) 6 Gratt. (47 Va.) 706; Hicks v. Commonwealth, 86 Va. 223, 226, 9 S.E. 1024; Glover v. Commonwealth, 86 Va. 382, 386, 10 S.E. 420; Collins v. Radford, 134 Va. 518, 535, 113 S.E. 735; Thacker v. Commonwealth, 134 Va. 767, 769, 114 S.E. 504; Dixon v. Commonwealth, 162 Va. 798, 803, 173 S.E. 521; Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395; Granberry v. Commonwealth, 184 Va. 674, 678, 36 S.E. (2d) 547; Preddy v. Commonwealth, 184 Va. 765, 775, 36 S.E. (2d) 549; Anderson v. Commonwealth, 195 Va. 258, 261, 77 S.E. (2d) 846.

Section 18-8 of the Code of Virginia provides, in part, as follows:

'Every person who attempts to commit an offense, and in such attempt does any act towards its commission, shall, when not otherwise provided, be punished as follows:

* * * '(2) If the offense attempted be a non-capital felony, he shall be confined in the penitentiary not less than one nor more than five years, or in the discretion of the jury or the judge trying the case be confined in jail not to exceed twelve months. * * *'

The defendant contends that the acts charged amounted to nothing more than a mere preparation to commit a crime, and that the allegations do not show any overt act towards its accomplishment. He insists that since there is no substantive evidence that Helen Watlington would have submitted to intercourse with any of the men that the crime could not have been committed in the absence of her consent.

'In a general way, however, it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt is a direct movement towards the commission after the preparations are made.' 14 Am. Jur., Criminal Law, § 67, page 816.

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