Southwick v. State

• Decision Date: 20 November 1916
• Docket Number: 258
• Citation: 189 S.W. 843,126 Ark. 188
• Parties: SOUTHWICK v. STATE
• Court: Arkansas Supreme Court

189 S.W. 843

126 Ark. 188

SOUTHWICK v. STATE

No. 258

Supreme Court of Arkansas

November 20, 1916

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

E. H Vance, Jr., for appellant.

1. The indictment is bad and the demurrer should have been sustained. 110 Ark. 318; 111 Id. 214; 114 Id. 310.

2. The testimony is insufficient to sustain a case of pandering.

3. The instructions for the State were erroneous.

Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee; D. D. Glover, of counsel.

1. While the time and place of some crimes must be alleged and proved the general rule is that neither need be done provided only, that the felony must be alleged. 34 Ark. 321; 102 Id. 393; 92 Id. 413; 99 Id 126. It is sufficient to follow the language used in the statute and the indictment only states one offense. 111 Ark. 214-217; 64 Id. 231; 70 Id. 290.

2. The demurrer was properly overruled. The indictment is sufficient. Kirby's Digest, §§ 2227-9; 111 Ark. 214-218. The instructions were correct.

WOOD, J. HUMPHREYS, J., not participating.

OPINION

WOOD, J.

Appellant was convicted under Act 105 of the Acts of 1913, page 407, of the crime of pandering. The charging part of the indictment is as follows: "Said C. E. Southwick, in the county and State aforesaid, on the 13th day of April, A. D. 1916, did unlawfully and feloniously, by force, fraud, intimidation or threats, and by the use of his position of confidence and authority, cause his wife, Leetta Southwick, to lead a life of prostitution, and procured other persons to induce his wife to lead a life of prostitution, and to have intercourse with her, he being then and there her husband, and she being then and there his wife, against the peace and dignity of the State of Arkansas."

The section of the act under which appellant was indicted reads: "Any person who, by force, fraud, intimidation or threats, places or leaves, or procures any other person or persons to place or leave, his wife in a house of prostitution or to lead a life of prostitution, shall be guilty of a felony and upon conviction thereof shall be sentenced to the penitentiary for not less than two nor more than ten years."

Pandering is but one offense, under the statute, and may be committed in the different modes therein enumerated. The indictment charges the offense as having been committed in the mode mentioned in section 2 of the act.

"Intimidation," in law, is "the use of violence or threats to influence the conduct or compel the consent of another." To intimidate is "to restrain by threats." Webster's Dictionary, "Intimidation," "Intimidate." The words "intimidation," "threats" were used in the statute synonymously.

The use of the disjunctive "or" between the words "intimidation" and "threats" in the statute was not in the sense of indicating that they are two different things, but was only used as an alias to designate the same thing by different words. The use of the words "intimidation" and "threats" thus connected by the use of the word "or" only means one and the same thing. If the word "or" had been used in the sense of disconnecting the words "force," "fraud," and "intimidation," so as to indicate that the pandering was done in either one of these ways, then the indictment would have been uncertain, and hence defective. Thompson v. State, 37 Ark. 408.

"In an offense created by the statute, it is generally sufficient to describe the offense in the words of the statute." See cases cited in 5 Encyclopedic Dig. of Ark. Reps. , p. 645.

In Blais v. State, 94 Ark. 327, 126 S.W. 1064, the indictment charged that the defendant "did forge a writing or paper." We held that the use of the word "or" in that connection did not describe the instrument alleged to have been forged in the alternative, since the words "writing" and "paper" clearly amounted to the same thing.

The indictment uses the words, "and by the use of his position of confidence and authority." These words are found in the first section of the act, and are intended to describe the offense when a person occupying a position of confidence or authority uses such relation to take, place, harbor, inveigle," etc., any female to any place in the State in which prostitution is practiced. These words, "and by the use of his position of confidence and authority," are clearly out of place in an indictment where the charge of pandering is other than that of placing a female in some house or prostitution. It is clear that the indictment was not intended to charge pandering by placing the female in a house of prostitution, or in any place where prostitution is practiced, the only charge being that he caused his wife, by the methods indicated, to lead a life of prostitution. But these words may be stricken from the indictment as surplusage. They are not a necessary part of the description of the offense. We conclude therefore that the indictment, though artlessly drawn, is nevertheless sufficient to charge the offense under the second section of the act.

The testimony on behalf of the State tended to prove that the appellant asked certain men on the streets of Malvern to go upstairs to a certain room, giving the number, at a certain hotel, stating to them that there was a woman there who wished to see them. He told one of the men to knock on her door. The witness knocked at the door, and the woman said, "Come in." When he entered she told witness that he ought to get out to work; asked the witness if there were any men that he could send in to see her, stating that she would pay him for his work; that both the husband of the woman and the woman herself stated to the witness that they would pay him fifty cents each for the men whom witness might send to her. Witness went out on the streets and spoke to one man, who didn't care to go up. Another man said he would go up. Witness accompanied this man to the door of the woman's room between 10 and 11 o'clock at night. The woman and appellant were in bed. Appellant told witness to take the man in another room and wait until appellant put his clothes on.

Another witness, who was night marshal of the town, stated that he met appellant on the street and ap...