State v. Gates, 7474

• Decision Date: 31 August 1950
• Docket Number: No. 7474,7474
• Parties: STATE, v. GATES.
• Court: Utah Supreme Court

Page 878

221 P.2d 878

118 Utah 182

STATE, v. GATES.

No. 7474.

Supreme Court of Utah.

Aug. 31, 1950.

Dean N. Clayton, George B. Handy, Ogden, for appellant.

Clinton D. Vernon, Attorney General, Robert S. Richards, Assistant Attorney General, Bryce E. Roe, Assistant Attorney General, for respondent.

WADE, Justice.

Ernie Gates was convicted of the crime of pandering, a felony, and he appeals. The record discloses that Ernie Gates approached a young woman in a bar on 25th Street in Ogden, Utah, and proposed to give her a job in a hotel in Bend, Oregon, and out lined to her tremendous financial advantages she could obtain by becoming a prostitute therein. He then made an appointment to meet her later that evening, which she kept, and went to his room with him where he furnished her with pertinent information about details of the 'trade.' The young lady did not accept the proffered job but at the end of about two hours of conversation, some police officers, by previous arrangement with her, arrived and arrested appellant.

Sec. 103-51-8, U.C.A. 1943, reads as follows: 'Any person who procures a female inmate for a house of prostitution; or induces, persuades, encourages, inveigles or entices a female person to become a prostitute; or who by promises, threats, violence, or by any device or scheme, causes, induces, persuades, encourages, takes, places, harbors, inveigles or entices a female person to become an inmate of a house of prostitution or assignation place, or any place where prostitution is practiced, encouraged or allowed * * * is guilty of pandering, and shall be punished by imprisonment in the state prison for a term of not more than twenty years.' (Emphasis ours).

Appellant was charged with having induced, persuaded, encouraged, inveigled and enticed a female person to become a prostitute. The court in instructing the jury said in its Instruction No. 1: 'In this case the court instructs you that the defendant has been charged by the information that he persuaded and encouraged and inveigled Beverly Willis to become a prostitute. At the time--this was about September 29, 1949. At the time there was on the statute books of the State of Utah a law which made it a felony to try to induce or entice or encourage a female to become a prostitute.'

Appellant asserts the giving of this instruction was prejudicial error because under that part of the statute which appellant was charged with violating the law does not provide that it is a crime to try to induce or persuade or encourage a female to become a prostitute, but requires that the female not being a prostitute change her condition and become one because of the acts charged. In support of this contention appellant cites State v. Topham, 41 Utah 39, 123 P. 888; State v. Mantis, 32 Idaho 724, 187 P. 268; People v. Cook, 96 Mich. 368, 55 N.W. 980; and Jefferson v. State, 21 Okl.Cr. 388, 208 P. 1038.

In the Topham case this court set aside the conviction because the information upon which it was based was fatally defective. In the course of its opinion it reviewed the evidence and indicated it might not have been sufficient to sustain a conviction because it failed to prove that the complaining witness remained an inmate of a house of prostitution because of any promise or inducement of the defendant, but proved at most that the complaining witness was not discouraged from following the course she herself had determined to take, and that if she wished to remain, the defendant promised to help her. This is no authority for the proposition that under our statute the arts and blandishments of the accused must result in a change of condition or status of the female in order to sustain a conviction.

In the Mantis case, the Idaho court merely held that where the woman suggested the proscribed acts and the accused merely consented, it was a case of entrapment and the accused could not be convicted of the crime.

In the Cook case the Michigan court held that a person could not be guilty of the crime of soliciting a female to enter a house of prostitution for the purpose of becoming a prostitute where such person was already an inmate of such a house, because that court was of the opinion that under its statute, the word, 'becoming' in the phrase 'for the purpose of becoming a prostitute' implies a change of condition or status, which could not occur in the case of one already a prostitute. Although the wording of the Michigan statute is unlike ours, the reasoning in that case would appear to sustain appellant's contention.

The Jefferson case also seems to support appellant's argument. In that case the complaining witness had voluntarily rented a room for the night in a rooming house which had the general reputation of being a house of prostitution. While, there, the defendant in that case tried to induce her by a promise of payment of money to make all night dates with men. She did not do so, but left the next morning. The defendant was charged with violating that portion of Oklahoma's statute which made it a crime to by means of promises, threats, violence or by any device or scheme, to cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution. The Criminal Court of Appeals of Oklahoma held that the state had failed to prove a case, because although the complaining witness had been enticed and encouraged by the defendant to remain in the house of prostitution, the accused failed in her efforts and the most she could be guilty of under the circumstances was an attempt to commit the crime charged.

This court, however, is not inclined to follow the reasoning of the Cook or Jefferson cases discussed above. In our opinion, statutes, such as our Sec. 103-51-8, U.C.A. 1943, are enacted for the protection of the public and are meant to discourage the nefarious activities of persons who seek to foster immorality and prostitution. Under our statute the crime is complete when a person 'encourages a female person to become a prostitute.' Success is not a necessary component of the crime. There is nothing in the wording of the statute which requires that the woman who is encouraged, to become a prostitute, must actually become one in order for the person so doing to be guilty of the crime. It is the act of encouragement, persuasion or inveiglement which is forbidden. To the effect that solicitation of unlawful intercourse, even though refused, is sufficient to complete the crime. See Denman v. State, 77 Tex.Cr.R. 395, 179 S.W. 120 and Day v. State, 70 Ga.App. 819, 29 S.E.2d 659, 660, wherein the court said: '* * * in an accusation for soliciting for a prostitute the gist of the offense is the harm done society by such unlawful solicitation, and not an injury to the individual solicited.'

Our position in this respect is strengthened by the wording of the statute and the charge in the information. In the statute as quoted above, we have emphasized the words which indicate that it is sufficient to merely try without success to induce a female to become a prostitute. Reading the emphasized portion of the statute alone it reads: 'Any person who encourages a female person to become a prostitute is guilty of pandering.'

The word 'encourages' as there used does not require that the female accept the proposition as do most of the other verbs with somewhat similar meaning which are used immediately before and after that word. Generally it is recognized that when a statute uses a number of words which vary slightly in meaning it is intended that each word is used to add a little different meaning to the sentence which is intended to cover the meaning of all of the words used. Under this construction even though a person in order to entice, induce, inveigle or persuade a person to become a prostitute may, by the meaning of those words, require that the person change her mode of life, no such requirement as that is necessary for a person to be encouraged to become something different from what she previously was.

All that is necessary under the meaning of that term is that the other person attempt or try to persuade her to change her course of life.

See also Commonwealth v. Stingel, 156 Pa.Super. 359, 40 A.2d 140, 141, wherein the Superior Court of Pennsylvania in construing a statute almost identical to ours, pointed out that such a statute contains both a clause making the procurement of a female inmate for a house of prostitution and a clause making the act of encouraging a female to become an inmate of a house of prostitution, an offense, and that it would fail to give full effect to the entire statute if it construed the clause making it an offense to induce a female to become an inmate of a house of prostitution to mean that the inducement must have been successful, thereby...