State v. Erwin

• Decision Date: 11 December 1941
• Docket Number: 6200
• Citation: 120 P.2d 285,101 Utah 365
• Court: Utah Supreme Court
• Parties: STATE v. ERWIN et al

120 P.2d 285

101 Utah 365

STATE v. ERWIN et al

No. 6200

Supreme Court of Utah

December 11, 1941

Rehearing Denied March 24, 1942.

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

E. B Erwin, Harry Finch, and R. O. Pearce were convicted of a conspiracy to allow the violation of the anti-vice laws, and they appeal.

Affirmed. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Ball & Musser, H. L. Mulliner, and Edward F. Richards, all of Salt Lake City, for appellants.

Joseph Chez, Atty. Gen., Grover A. Giles, Asst. Atty. Gen., and Calvin W. Rawlings, Dist. Atty., and Brigham E. Roberts, Asst. Dist. Atty., both of Salt Lake City, for respondent.

WADE, District Judge. MOFFAT, C. J., and LARSON and PRATT, JJ., WOLFE, Justice, concurring. McDONOUGH, J., being disqualified, did not participate.

OPINION

WADE, District Judge.

In this case the State of Utah prosecutes the defendants, E. B. Erwin, Harry L. Finch, R. O. Pearce, Frank A. Thacker and Ben Harmon, for a conspiracy to allow the violation of the anti-vice laws, on an indictment returned by the grand jury.

The defendant Ben Harmon died before the trial, and Frank A. Thacker was acquitted by the jury. The other defendants were convicted and bring this appeal.

The allegations of the indictment material to this appeal are as follows:

"That the said E. B. Erwin, Harry L. Finch * * * (and) R. O. Pearce * * * the said E. R. Erwin at all times herein mentioned being the duly elected, qualified and acting Mayor and Commissioner of Public Safety of Salt Lake City, * * * and the said Harry L. Finch, * * * being the Chief of Police of Salt Lake City, * * * on the 6th day of January, 1936, and on divers other days and times between that day and the 1st day of January, 1938, at the County of Salt Lake, State of Utah, did wilfully and unlawfully agree, combine, conspire, confederate and engage to, with and among themselves * * * and to and with divers other persons to the grand jury unknown, to commit acts injurious to public morals and for the perversion and obstruction of justice and the due administration of the laws of the State of Utah. To wit:

"That the said E. B. Erwin, Harry L. Finch * * * (and) R. O. Pearce * * * did wilfully and unlawfully agree, combine, conspire, confederate and engage, to, with and among themselves * * * and to and with divers other persons to this grand jury unknown, wilfully and corruptly to permit, allow, assist and enable houses of ill fame, resorted to for the purpose of prostitution and lewdness, and lotteries, dice games, slot machines, book-making and other gambling devices and games of chance to be kept, maintained and operated at various places in Salt Lake City, Salt Lake County, Utah, the said defendants then and there well knowing that said houses of ill fame, lotteries, dice games, slot machines, book-making and other gambling devices, and games of chance, were being kept maintained and operated in Salt Lake City in violation of the statutes of Utah and the ordinances of Salt Lake City, and in furtherance of said conspiracy did commit the following overt acts:

"1. That during all the period of time between March 15, 1936, and January 1, 1938, the said defendants permitted, allowed, assisted and enabled houses of ill fame, resorted to for the purpose of prostitution and lewdness, to be kept, maintained and operated at various places in Salt Lake City * * *.

"2. That during all the period of time between March 15, 1936, and January 1, 1938, the said defendants permitted, allowed, assisted, and enabled lotteries, dice games, slot machines, book-making, and other games of chance and gambling devices to be kept, maintained and operated at various places in Salt Lake City * * *.

"3. That on or about the first day of each and every month, between the months of June, 1937, and January, 1938, both months inclusive, the defendants collected and caused to be collected money from the operators of various houses of ill fame, in various places in Salt Lake City * * *.

"4. That at various times between April 1, 1936, and January 1, 1938, the defendants collected and caused to be collected money from the operators of various lotteries, dice games, slot machines, book-making, and other games of chance and gambling devices at various places in Salt Lake City. * * *"

In due course the defendants demanded and the court required the State to furnish a bill of particulars, and the State furnished to the defendants detailed information of what the State intended to prove.

Counsel for the defendants urge that the indictment was obviously insufficient and inadequate. That under Section 12, Article I, of Utah Constitution, and under Section 105-1-8, Paragraph (2), of Revised Statutes of Utah for 1933, the accused is guaranteed the right to demand the nature and cause of the accusation against him and to have a copy thereof. And that this court and many other courts have repeatedly held that it is not sufficient to use generic terms, but the indictment must state the particulars so distinctly that the accused will be advised of the charge he is to meet and to be given a fair opportunity to prepare his defense, always assuming that he is innocent and knows nothing of the facts charged, and so that he can avail himself of the disposition of this charge in defense of another prosecution for the same offense. See United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; United States v. Hess, 124 U.S. 483, 8 S.Ct. 571; 31 L.Ed. 516; State v. Topham, 41 Utah 39, 123 P. 888; State v. Lund, 75 Utah 559, 286 P. 960. All of the cases which counsel cited, including the above, hold that the indictment passed on failed to state in sufficient detail the offence charged, and pointed out the details which were lacking; but counsel has not pointed out the details which he claims are lacking in this indictment.

By inference, counsel argue that the indictment uses terms which might have many different meanings and therefore is not sufficiently specific in alleging that the defendants conspired to "permit, allow, assist and enable houses of ill fame" and gambling games and devices to operate; but even in this counsel fails to point out more than one possible thing that the defendants, some of whom were city officials, could possibly do under that allegation. By the very nature of the thing about all they could do, or conspire to do, would be to do nothing,-- to take no action to prevent the operation of such places; to fail to make arrests, or to fail in any manner to enforce the law. That description of what they conspired to do can have but one meaning. In the case of People v. Tenerowicz, 1934, 266 Mich. 276, 253 N.W. 296, 298, the indictment was almost in the exact words of the indictment in this case. In that case it was alleged that the defendants conspired to "permit and allow" houses of ill fame to operate. The court held that these words should be construed as meaning and charging that the defendants conspired to "assist and enable" the other parties to operate and maintain houses of ill fame. The indictment in the present case uses all four of these terms. In the Tenerowicz case the court held the indictment sufficient, and also that the court did not err in failing to require the State to furnish a bill of particulars on the demand of the defendants, and held that the indictment stated the offense in sufficient detail, --that where a conspiracy to commit an offense is charged the conspiracy is the gist of the crime and the offense which is the object of the conspiracy need not be alleged in the same detail as where the defendant is charged with the commission of that offense. Citing People v. Di Laura, 259 Mich. 260, 243 N.W. 49; People v. Clark, 10 Mich. 310; People v. Petheram, 64 Mich. 252, 31 N.W. 188; Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52, 52 L.Ed. 278 L.Ed. 278; Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. This indictment is clearly stated in sufficient detail to inform the defendants of the nature and cause of the accusation against them and to satisfy the requirements of the Constitution and statute. The main argument of the defendants against the indictment is, that if the indictment is insufficient in detail it cannot be made sufficient by the bill of particulars. It is not necessary for us to determine this question because this indictment is sufficient without the bill of particulars.

Counsel further urge that the indictment is insufficient because under Sec. 103-11-3 it is provided,

"No agreement * * * amounts to a conspiracy, unless some act, besides such agreement, is done to effect the object thereof by one or more of the parties to such agreement."

And that the "overt acts" set out in the indictment are not "overt acts" at all. That the first and second "overt acts" charged, to the effect that the defendants permitted houses of vice to operate, are a part of the agreement and need some other acts besides the agreement to effect its object. They attempt to prove this by placing on opposite sides of a page a statement of what the agreement is and what the defendants did, and seem to conclude that since the information alleges that defendants agreed to permit houses of vice to operate, and, as an overt act that defendants permitted houses of vice to operate, that the act of permitting houses of vice to operate is a part of the agreement, and not an act besides such agreement, to effect the object thereof. In this argument, counsel loses sight of the fact that to agree, conspire, and plan consists of meeting of the minds on a plan of...