State v. Clark
| Decision Date | 07 April 1928 |
| Docket Number | 28,061 |
| Citation | 125 Kan. 791,266 P. 37 |
| Parties | THE STATE OF KANSAS, Appellee, v. CHARLES CLARK, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1928
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. PROSTITUTION--Procuring to Go from Place to Place--Information--Duplicity. Where defendant was charged in a single count with persuading a female person to go from one place to another for the purpose of prostitution and concubinage, contrary to R. S. 21-937, the gist of the offense was that of getting her to go from one place to another for an immoral purpose, and where no material issue arose under the evidence as to which of the immoralities denounced by the statute was involved in the offense, the overruling of defendant's motion to quash on the ground of duplicity was not prejudicially erroneous.
2. SAME--Procuring to Go from Place to Place--Election. Where the gist of the offense was that of persuading a female person to go from one place to another within this state for an immoral purpose as denounced by the statute (R. S 21-937), and where the information charged but a single count, it was not necessary to require the prosecuting attorney to elect as to which of several inconsequential changes of residence or short journeys within the same city or county made by defendant in company with his paramour would be relied upon for a conviction, where the evidence disclosed nothing concerning them in doubt or dispute which tended to prejudice defendant in making his defense to the charge.
3. SAME--Procuring to Go from Place to Place--Necessity of Distinguishing Between Prostitution and Concubinage. The rule announced in State v. Goodwin, 33 Kan. 538, 6 P. 899, considered, and its scope limited to cases where the protection of the rights of an accused person may still require the inherent distinction between prostitution and concubinage to be defined and preserved.
4. SAME--Generally. Other objections to the judgment noted but not sustained.
Harold Medill, of Independence, for the appellant.
C. W. Mitchell, county attorney, and Theo. F. Varner, assistant county attorney, for the appellee.
The information with preliminary recitals alleged:
"That heretofore and to wit on or about the 9th day of May, A. D. 1927, at and within the county of Montgomery and state of Kansas, the above-named defendant, Charles Clark, then and there being, did then and there willfully, wrongfully, unlawfully and feloniously persuade, induce, entice and procure one Lillian Smalley, a female person, to go from one place to another within the state of Kansas for the purpose of prostitution and concubinage; all contrary to . . . the form of the statute," etc.
Defendant filed a motion to quash on four grounds, two of which read:
This motion was overruled, and the cause was called for trial. At the conclusion of plaintiff's opening statement counsel for defendant made the following oral motion:
"Comes now the defendant, and moves the court to require the state to elect on which offense they are now seeking to go to trial, as to whether or not they seek to go to trial on inducing, enticing and persuading one Lillian Smalley to go from one place to another in Montgomery county, Kansas, for the purpose of prostitution, or whether they seek to go to trial on inducing, enticing and persuading Lillian Smalley to go from one place to another in the county of Montgomery in the state of Kansas on the charge of concubinage."
This motion was overruled, and the state presented its evidence, which tended to show that the woman in the case, Lillian Smalley, met defendant in Caney and he gave her money to buy a railway ticket to Independence. Defendant went with her to the latter place. They rented a room at 418 South Ninth street and lived there in adulterous association for a week and a half. Their landlord ordered them to leave, and she went to Tulsa, Okla., for two days, and defendant sent her money for a railway ticket to return to Independence. She came, and defendant met her at the depot and they secured rooms at 415 North Fourth street and resided there in adulterous relationship for two or three days. Then they moved to 308 North Fourth street and lived there in adulterous intercourse. At this stage of the state's evidence, this incident is recorded:
The foregoing is only a partial summary of the evidence, but will serve to develop the legal questions with which we are presently concerned.
The jury returned a verdict as follows:
"We, the jury in the above-entitled cause, on our oath find the defendant, Charles Clark, guilty of persuading, inducing, enticing or procuring or assisting in persuading, inducing, enticing, or procuring a female person for the purpose of prostitution or concubinage, to go from one place to another within this county and state for the purpose of prostitution or concubinage, all in the manner and form charged by the information."
Defendant's motions in arrest of judgment and for a new trial were overruled, and he was sentenced to penal servitude for a term of from one to five years. He appeals, first urging that the information charged two offenses in one count, and in support of this point he cites State v. Goodwin, 33 Kan. 538, 6 P. 899, where it was held:
"Where an information charges that a defendant took away a female under the age of eighteen years from her father, without his consent, for the purpose of prostitution and concubinage, there is a joinder of two distinct offenses in one count, and therefore the information is bad, for duplicity."
The prosecution in that case was under R. S. 21-428, which reads:
"Every person who shall take away any female, under the age of eighteen years, from her father, mother, guardian, or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall upon conviction thereof be punished by confinement and hard labor for a term not exceeding five years."
We would not say there is a fundamental distinction between that section of the crimes act and the one under which this prosecution was based. Rather would we frankly confess that the lapse of forty odd years since the Goodwin case was decided has changed the attitude of courts towards the administration of criminal law. (State v Seidel, 113 Kan. 390, 392, 214 P. 565.) Much that was said in the Goodwin case is still good law. We still recognize that prostitution and concubinage are quite different criminal acts, and cases may and sometimes do arise where court and counsel must preserve the proper distinction between them. Such a situation would develop if part of the evidence tended to show the accused had taken away the female for the purpose of concubinage and another part of the evidence tended to show that the taking was for the grosser purpose of prostitution. In any such case, doubtless much that is said in State v. Goodwin will continue to be both instructive and important. But in the present case there was no hint in the evidence or otherwise that the defendant had any purpose to devote the woman to prostitution when he induced her to go with him from one place...
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...trial court's denial of access to prospective prosecution witnesses has been upheld as a proper exercise of discretion. State v. Clark, 125 Kan. 791, 796, 266 P. 37 (the defendant waived preliminary examination where he could have discovered the nature of the testimony). Wilkerson v. State,......
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State v. Carr
... ... necessarily constitute more than a single criminal offense, ... and defendant's motion to quash was properly ... overruled." (Syl. par. 3.) ... A ... somewhat analogous case, involving the question of claimed ... duplicity, was considered in State v. Clark, 125 ... Kan. 791, 266 P. 37, where the defendant was charged in a ... single count with persuading a female person to go from one ... place to another for immoral purposes, and it was held the ... gist of the offense was getting the woman to go and the fact ... several changes of residence ... ...
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...274, 282; Henderson v. People, 124 Ill. 607, 614. 17 N.E. 68, 7 Am.St.Rep. 391; State v. Bussey, 58 Kan. 679, 50 P. 891; and State v. Clark, 125 Kan. 791, 266 P. 37. Proof of what the appellant actually did is more important on his intent and purpose than the failure to show subsequent acts......
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