Nichols v. The State

• Decision Date: 25 February 1891
• Docket Number: 15,892
• Citation: 26 N.E. 839,127 Ind. 406
• Parties: Nichols et al. v. The State
• Court: Indiana Supreme Court

26 N.E. 839

127 Ind. 406

Nichols et al. v. The State

No. 15,892

Supreme Court of Indiana

February 25, 1891

Petition for a Rehearing Overruled March 19, 1891.

From the Delaware Circuit Court.

Judgment affirmed.

B. F Davis, W. H. Martz, R. Gregory and A. C. Silverberg, for appellants.

A. G Smith, Attorney General, J. G. Leffler, Prosecuting Attorney, J. W. Ryan, W. H. Thompson and G. W. Cromer, for the State.

OPINION

Coffey, J.

This was a prosecution instituted in the Delaware Circuit Court, by affidavit and information, against the appellants, Doan Nichols and Fannie Wiley, and one Ret. Shetterly, charging them with the crime of abduction. The affidavit in the cause charges "that Doan Nichols, Ret. Shetterly, and Fannie Wiley, at the county of Delaware, in the State of Indiana, on the 14th day of May, 1890, did then and there unlawfully and feloniously entice and take away from the city of Muncie, in the county aforesaid, one Almeda O. Watters, a female of chaste character, then and there being, to the city of Indianapolis, in the county of Marion, in said State, with the felonious intent then and there of rendering the said Almeda O. Watters a prostitute."

The information in the cause follows the affidavit.

A trial of the cause, before a jury, resulted in a verdict finding the appellants guilty as charged. The court, over a motion for a new trial and a motion in arrest of judgment, rendered judgment on the verdict from which this appeal is prosecuted.

No motion was made in the circuit court to quash the affidavit or information, nor is the evidence in the record.

Section 1993, R. S. 1881, upon which this prosecution is based, is as follows: "Whoever entices or takes away any female of previous chaste character from wherever she may be to a house of ill-fame, or elsewhere, for the purpose of prostitution, shall be imprisoned," etc.

It is insisted by the appellants that the circuit court erred in overruling their motion in arrest of judgment, because the affidavit and the information in the cause do not state a public offence. The principal objection urged is that neither the affidavit nor information contains a description of any particular house or place to which Almeda O. Watters was taken for the purpose of rendering her a prostitute.

The rule is, that where words of a particular description in a statute are followed by general words that are not so specific and limited, unless there be a clear manifestation of a contrary purpose, the general words are to be construed as applicable to persons or things, or cases, of like kind to those designated by the particular words. Bishop Stat. Crimes, sections 245-6; State v. McCrum, 38 Minn. 154, 36 N.W. 102; Berg v. Baldwin, 31 Minn. 541; Miller v. State, 121 Ind. 294, 23 N.E. 94.

Following this rule of construction it was held in the case last cited that the words "or elsewhere," as found in the statute under consideration, should be construed to mean a house of ill-fame or some other place of like character, where prostitution of the character practiced at houses of ill-fame or assignation was, or was intended to be, carried on. The purpose of the statute was to punish persons, whether male or female, who should engage in the business of inducing females of chaste character to become inmates or frequenters of houses of ill-fame, assignation or other places for purposes of prostitution. It has no application to persons who entice, allure, or solicit females of chaste character to accompany them to any convenient place for the sole purpose of having illicit intercourse. It applies to such persons only as allure chaste females to houses of ill-fame, or other places of like character, to have common, indiscriminate, meretricious commerce with men, or where they may become prostitutes. Fahnestock v. State, 102 Ind. 156, 1 N.E. 372; Osborn v. State, 52 Ind. 526; Commonwealth v. Cook, 12 Met. 93; State v. Stoyell, 54 Me. 24; Carpenter v. People, 8 Barb. 603; State v. Ruhl, 8 Iowa 447; People v. Plath, 100 N.Y. 590, 3 N.E. 790; Miller v. State, supra.

Prostitution, in its limited sense, is the practice of a female offering her body to an indiscriminate intercourse with men--the common lewdness of a female.

Section 2003, R. S. 1881, declares that "Any female who frequents or lives in houses of ill-fame, or associates with women of bad character for chastity, either in public or at a house which men of bad character frequent or visit; or who commits fornication for hire--shall be deemed a prostitute."

If, therefore, it sufficiently appear from the affidavit and information before us that the appellants enticed the person therein named, a female of previous chaste character, to a house of ill-fame or other place of like character for the purpose of prostitution, a public offence is charged.

The charge is that they enticed her away from the city of Muncie, in the county of Delaware, to the city of Indianapolis, in the county of Marion. No particular house or place in the city of Indianapolis is designated or described. In our opinion this affidavit and information would not have been sufficient to withstand a motion to quash, had such a motion been interposed in the circuit court.

The appellants were entitled to a more particular description of the place to which the person named was enticed had they insisted upon such a description.

It has often been adjudged that where an indictment or information does not contain all the essential elements of a public offence a motion in arrest of judgment will be sustained. Greenley v. State, 60 Ind. 141; Lowe v. State, 46 Ind. 305; Shepherd v. State, 64 Ind. 43; Hoover v. State, 110 Ind. 349, 11 N.E. 434.

It is contended by the State, however, that the failure to describe the particular house or place at the city of Indianapolis to which the female named was taken for the purpose of prostitution, was a defect cured by verdict; that a place is in fact stated, though imperfectly.

The argument is that while there is no inference of law that the city of Indianapolis is an immoral place, or that it is like, in character, to a house of ill-fame, the court will take judicial notice that there are many places in the city of Indianapolis used for various purposes; that while the court can not judicially know that there are immoral places in the city, the inference of morality is met by the charge that the female was taken there with the intent of rendering her a prostitute, and that she was taken to a place suitable for that purpose.

There are many defects in pleading, both in civil and criminal cases, which would be fatal on demurrer or on motion to quash, which are not available on a motion in arrest of judgment. Graeter v. State, 105 Ind. 271, 4 N.E. 461; Trout v. State, 107 Ind. 578, 8 N.E. 618; Greenley v. State, supra; Lowe v. State, supra; Shepherd v. State, supra; McCool v. State, 23 Ind. 127; State v. Noland, 29 Ind. 212; Gillett Crim. Law, 562; Bicknell Crim. Practice, 310; State v. Murphy, 8 Blackf. 498; Peters v. Banta, 120 Ind. 416, 22 N.E. 95; Colchen v. Ninde, 120 Ind. 88, 22 N.E. 94; Hare v. State, 4 Ind. 241.

Section 1891, R. S. 1881, provides that "In the consideration of the questions which are presented upon an appeal, the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action of the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant."

In the case of Trout v. State, supra, it was held that this statute is applicable to criminal cases. With this statute in view the rule in this State is that where the indictment or information contains all the essential elements of a public offence, even though imperfectly stated, it will be held sufficient to withstand a motion in arrest of judgment. Trout v. State, supra; Graeter v. State, supra.

After verdict in this case, as the appellants were found guilty, we must assume, as we do in all cases where the pleading is broad enough, that there was proof of all the elements necessary to constitute the crime charged. State v. Murphy, supra.

The charge is that the female named in the information was enticed to the city of Indianapolis, and under this charge we think the State might have proven the particular house or place to which she was enticed, and that such house or place was like unto a house of ill-fame. As we have seen, the evidence is not in the record, and we...