State v. Bowman

• Decision Date: 28 February 1925
• Parties: STATE, Respondent, v. EVA BOWMAN, Appellant
• Court: Idaho Supreme Court

235 P. 577

40 Idaho 470

STATE, Respondent, v. EVA BOWMAN, Appellant

Supreme Court of Idaho

February 28, 1925

INFORMATION-SUFFICIENCY OF-STATUTES-CONSTRUCTION-EVIDENCE-SUFFICIENCY.

1. In order that an information charging a statutory offense in the language of the statute may be sufficient it must fully directly and expressly contain all the elements constituting the offense, and if the exact language of the statute fails to do this, the wording of the statute may be expanded consonant with its intent, to sufficiently describe the crime.

2. C S., sec. 8271, par. 2, is not limited to acts against the will and consent of a female, since voluntary acts are defined therein as well as involuntary acts.

3. The word "or" following the words "immoral purpose" found in the second paragraph of C. S., sec 8271, which reads that "any person who shall induce, entice or procure, or attempt to induce, entice or procure any woman or girl for the purpose of prostitution or concubinage, or for any other immoral purpose, or to enter any house of prostitution in this state, shall be deemed guilty of a felony," should be treated as surplusage, since by such omission the plain intent of the statute is expressed.

4. Evidence examined and held sufficient to justify the verdict and judgment based thereon.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. M. I. Church, Judge.

Defendant was convicted of enticing, inducing and procuring a female to enter a house of prostitution for the purpose of prostitution. Affirmed.

Petition for rehearing denied.

Reddoch & Hunter, for Appellant.

The information is duplicitous. (C. S., secs. 8271, 8829; 12 Stand. Proc. 509; People v. Plath, 166 Cal. 227, 135 P. 954; United States v. American Naval Stores Co., 186 F. 592; State v. St. Louis & S. F. R. Co., 83 Ark. 254, 103 S.W. 625; State v. Goodwin, 33 Kan. 538, 6 P. 899; State v. Adams, 179 Mo. 334, 78 S.W. 588; State v. Nicholas, 124 Mo.App. 330, 101 S.W. 618; State v. Dennison, 60 Neb. 192, 82 N.W. 628.)

The information does not state facts sufficient to constitute a public offense. (16 C. J. 68; State v. Satterlee, 110 Kan. 84, 202 P. 636, State v. Lantz, 90 W.Va. 738, 111 S.E. 766, State v. Diamond, 27 N. M. 477, 202 P. 988, and cases therein cited; Wabash Ry. Co. v. O'Bryan, 285 F. 583.)

The information does not set forth any offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended, nor does it set forth the particular circumstances of any offense. (C. S., secs. 8825-8827; State v. Topham, 41 Utah 39, 123 P. 888; Hipsman v. State (Okla. Cr.), 205 P. 1103; State v. Dodd, 84 Wash. 436, 147 P. 9; Kennedy v. State, 86 Tex. Cr. 450, 216 S.W. 1086; State v. Gesas, 49 Utah 181, 162 P. 366.)

It seems evident that the legislature adopted the statute as it intended to adopt it, and this being so, the court should pass upon it as it finds it. (36 Cyc. 1106, 1111.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

It is a general rule of law that in construing a statute the court will take into consideration the reason of the law, the object and purpose of the same, and the object of the legislature in enacting the same. (Rural H. S.D. No. 1 v. School D. No. 37, 32 Idaho 325, 182 P. 859.)

A statute, obviously a patchwork affair, is subject to the rule that words which fail to have any useful purpose may be eliminated in arriving at the intent of the legislature. (Riggs v. Palmer, 115 N.Y. 506, 12 Am. St. 819, 22 N.E. 188, 5 L. R. A. 340; People v. Draper, 169 A.D. 479, 154 N.Y.S. 1034; People v. Rogers, 183 A.D. 604, 170 N.Y.S. 825.)

It is the duty of the courts to give effect, if possible, to every word of the written law. But if a word or clause be found in a statute which appears to have been inserted through inadvertence or mistake and if the statute is complete and sensible without it, such word or clause may be rejected as surplusage. (Black on Interpretation of Laws, p. 83.)

A crime may be stated in the words of the statute. (State v. McMahon, 37 Idaho 737, 219 P. 603; State v. O'Neil, 24 Idaho 582, 135 P. 60; State v. Rogers, 30 Idaho 259, 163 P. 912; State v. Lundhigh, 30 Idaho 365, 164 P. 690; People v. Brown, 61 Cal.App. 748, 216 P. 58; People v. De Martini, 25 Cal.App. 9, 142 P. 898.)

The information filed in this case satisfied the Idaho statutes. (People v. Brown, supra; People v. De Martini, supra; Jefferson v. State (Okla. Cr.), 208 P. 1038.)

BAUM, District Judge. William A. Lee, C. J., Wm. E. Lee, Budge and Givens, JJ., concur.

OPINION

BAUM, District Judge.

--Appellant was convicted of the crime of procuring, enticing and inducing a girl of sixteen years of age to enter a house of prostitution for the purpose of prostitution, and was sentenced to imprisonment in the state penitentiary for a term of not less than two years and not more than five years, and she appeals from the judgment.

That portion of C. S., sec. 8271, under which appellant was charged and convicted, reads:

"Any person who shall induce, entice or procure or attempt to induce, entice or procure any woman or girl for the purpose of prostitution or concubinage, or for any other immoral purpose, or to enter any house of prostitution in this state, shall be deemed guilty of a felony, and, on conviction thereof, shall be punishable by imprisonment in the state prison for a period of not less than two years nor more than 20 years, or by a fine of not less than $ 1,000 nor more than $ 5,000, or by both such fine and imprisonment."

Twenty-five assignments of error are specified and relied upon for a reversal, and for the purpose of this opinion such assignments of error will be grouped into four main subdivisions, namely:

1. Error in overruling demurrer.

2. Error in admission of testimony.

3. Error in giving certain instructions to the jury.

4. Insufficiency of the evidence to justify the verdict and sustain the judgment.

Appellant maintains that the information fails to state a public offense, and that the state has taken one alleged act or omission and segregated same into several separate and distinct offenses; that the information does not conform to the requirements of C. S., sec. 8825, subd. 2, in that a statement constituting the alleged offense is not set forth in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended; and that it does not conform to requirements of C. S., sec. 8827, subd. 3, in that the particular circumstances of the alleged offense, or of any offense, are not set forth therein; and that the statute is void for uncertainty.

Chap. 205, Sess. Laws 1911, p. 673, contains eleven sections, the same being entitled,--

"An Act to prevent the importation into this state or the exportation from this state of women and girls for immoral purposes; prohibiting the keeping, maintaining, controlling, supporting or harboring of any woman or girl for immoral purposes, and prescribing the punishment therefor."

This act became C. S., chap. 303, art. 2, entitled "Procurement for Prostitution," and comprises secs. 8270 to 8277, inclusive.

The only test is not that an information follows the statute, but that it is in compliance with the law prescribing the requisites of an information. An information, under our statute, is the written statement of the prosecuting attorney accusing a person therein named of some act or omission which, by law, is declared to be an offense.

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 or information. The statement of a legal conclusion will not suffice. (1 Wharton's Criminal Procedure, 10th ed., p. 240, sec. 196; State v. Topham, 41 Utah 39, 123 P. 888.) And such has been the holding of our own court. (State v. Scheminisky, 31 Idaho 504, 174 P. 611.) Therefore, does the information in the instant case inform the defendant of the particular acts or omissions complained of? The information charges that appellant did "willfully, unlawfully, feloniously and knowingly--by then and there promising Rhoda Boren, a girl of 16 years of age that she could make money by entering a house of prostitution . . . . and by then and there furnishing said girl a lunch and drinks of liquor free of charge, and by then and there offering to assist said girl in leading the life of a prostitute and giving said girl free transportation to said house--induce, entice and procure said girl, to wit, Rhoda Boren, for the purpose of prostitution, to enter a house of prostitution, . . . . to wit, that certain house of prostitution known and designated as 1221 Grove St., Boise, Ada county, Idaho, said defendant . . . . then and there knowing said house to be a house of prostitution."

C. S., sec. 8834, contains the following:

"That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

"That the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon conviction, according to the right of the case."

All that is necessary is that the information be sufficient to advise the defendant of the nature of the charge against him and that it describes the offense with such particularity as to serve as a shield in case of a second prosecution for the same offense. (State v. Lottridge, 29 Idaho 53, 155 P. 487; State v. Andrus, 29 Idaho...