Noel v. State, No. 30765

• Docket Nº: No. 30765
• Citation: 215 N.E.2d 539, 247 Ind. 426
• Case Date: April 14, 1966
• Court: Supreme Court of Indiana

Page 539

215 N.E.2d 539 247 Ind. 426 Nelson NOEL, Appellant,
v.
STATE of Indiana, Appellee. No. 30765. Supreme Court of Indiana. April 14, 1966.
Rehearing Denied June 6, 1966.

[247 IND 427]

Page 541

Thomas W. Munger, Lafayette, for appellant.

John J. Dillon, Atty. Gen., Douglas B. McFadden, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

The defendant-appellant was convicted of enticing a female into an immoral place. The evidence shows that the defendant, 43 years of age, owned a 1951 Chevrolet school bus with a cot or bed therein; that in August, 1964 the prosecuting witness, of the age of 17, was approached by the defendant to engage in prostitution in the bus; that he had arrangements with other girls for the same purpose and that one of them had become pregnant and that he was looking for a replacement.

The evidence further shows that he asked one of the girls for the name of some other girls and he, in his school bus with one of the girls, went to see the prosecuting witness and at the time offered her a job as a prostitute on his bus, goving her the details of her work and the price she was to charge. He asked her also if she knew of any other girls he could get to work for him.

The prosecuting witness at the time was on parole from the Girls School. We may draw from the evidence that she informed her parole officer of the solicitation and that she shortly thereafter informed the defendant that she would [247 IND 428] work for him. A specific night was fixed for them to meet the defendant with his bus at Bald Knob for her to perform her work. When the girls met the defendant with his bus at that location, the police were there and arrested the defendant.

Errors complained of in the trial court are first, that the court erred in overruling the motion to quash. The memorandum thereto specified that the indictment was vague and indefinite because of the expression therein 'to prostitute herself'. We are not impressed with this contention, since common usage of the word 'prostitute' involves sexual intercourse, although it may have a less immoral meaning in some rather uncommon usage. Merriam-Webster New Insternational Dictionary (3rd ed. 1961) defines the verb prositute as follows:

'1. to offer indiscriminately for sexual intercourse esp. for payment. * * *

'2. to devote to corrupt or unworthy purposes or ends. * * *'

The context in which the words in the indictment is used reveals clearly, and in our opinion, definitely its meaning. The indictment reads in part that the defendant did entice the prosecuting witness, a female person, 'for vicious and immoral purposes, to-wit: for the purpose of having sexual intercourse with said girl and for the purpose of causing, aiding and encouraging said girl to prostitute herself * * *.' The affidavit clearly states in direct and unmistakable terms the nature and character of the charge against the defendant with certainty to a common intent. Kraft v. State (1930), 202 Ind. 44, 171 N.E. 1; Smith v. State (1927), 199 Ind. 217, 156 N.E. 513.

It is next complained that the court erred in excluding the juvenile court record of the prosecuting witness. We find no error in such ruling of the court, since Burns' Ind.Stat.Anno. § 9--3215 (1965 Supp.) provides that no child shall 'be deemed a criminal by reason of such [247 IND 429] adjudication, nor shall such adjudication be deemed a coviction, * * *' Burns' Ind.Stat.Anno. § 9--3114 (1956 Repl.) further provides that 'Such records shall be open only by order of the court to persons having a legitimate interest. * * *'

The purpose of the statute is to protect juveniles against such proceedings brought for their benefit, and it may not be used for the purposes of impeachment. Woodley v. State (1949), 227 Ind. 407, 86 N.E.2d 529.

Page 542

Next, error is complained of in the giving of instruction number 9 by the court. This instruction reads as follows:

'While it is necessary that every essential element of the crime charged against the accused should be proved by the evidence beyond a reasonable doubt, this does not mean that all the incidental or subsiduary (sic) facts should be proved beyond a reasonable doubt. Evidence is not to be considered in fragmentary parts, and as though each fact or circumstance stood apart from the others, but the entire evidence is to be considered. The weight of the testimony to be determined from the other evidence may be weak, if not impossible, but when viewed in connection with surrounding facts and circumstances, it may be so well supported as to remove all doubts as to its existence, as detailed by the witness. Acts when considered apart from all other evidence may appear innocent, but when considered with other evidence may import guilt.' (Our italics.)

The defendant's objection to this instruction was that the sentence beginning with the words '* * * The weight' and ending with the word 'witness' is without meaning and confusing. It appears to us that what has happened through some typographical error is that the word 'impossible' has been...