State v. Kanakaris
| Decision Date | 12 November 1917 |
| Docket Number | 4012. |
| Parties | STATE v. KANAKARIS. |
| Court | Montana Supreme Court |
Appeal from District Court, Yellowstone County; Geo. W. Pierson Judge.
Gust Kanakaris was convicted of an offense, and from the judgment and order denying his motion for new trial, he appeals. Judgment and order reversed, and cause remanded for new trial.
H. C Crippen and J. H. Johnston, both of Billings, for appellant.
S. C. Ford, of Helena, and Frank Woody, of Butte, for the State.
The defendant was prosecuted for a violation of certain provisions of chapter 1, Laws of 1911, was convicted, sentenced to imprisonment in the penitentiary for not less than 15 years nor more than 20 years, and has appealed from the judgment and from an order denying his motion for a new trial.
1. The charging part of the information follows:
"That the said Gust Kanakaris, then and there being, then and there, a male person, willfully, wrongfully, unlawfully and feloniously did live with and in whole and in part upon the earnings of, and money supplied by, one Ollie Nunley, she, the said Ollie Nunley, being then and there a common prostitute and woman of bad repute, and he, the said Gust Kanakaris, did, then and there, knowingly, willfully, wrongfully, unlawfully and feloniously accept, receive, levy and appropriate money, without consideration, from the proceeds and earnings of the said Ollie Nunley, while so engaged in prostitution."
That this information charges two distinct offenses in violation of the provisions of section 9151, Revised Codes, is apparent.
Chapter 1 above consists of twelve sections. Sections 10 and 11 are the repealing clauses, and section 12 prescribes when the act shall take effect. Each of the first nine sections defines a separate and distinct offense and provides the punishment therefor. Section 8 brands as a felon every one, whether male or female, who knowingly and without consideration takes or receives from a woman engaged in prostitution any of the earnings of her shame. This section was designed to prevent the levy of tribute upon the occupation of women of the underworld or the gratuitous receipt of any of the proceeds of their prostitution, knowing it to be such, by the imposition of fine or imprisonment, or both fine and imprisonment, for a violation of its provisions. By enacting section 9, the Legislature evinced a purpose to drive out of this state every vagabond, pimp, and secretary who lives with a common prostitute or who depends for his living, in whole or in part, upon money supplied by a fallen woman, whether that money be earned in legitimate business or derived from her unlawful occupation. The punishment was adjusted to effectuate the purpose, for every violation of the section subjects the offender to imprisonment in the penitentiary without the alternative privilege of paying a fine and remaining a large. State v. Jones, 51 Mont. 390, 153 P. 282.
The most cursory reading of the information discloses that the defendant was charged with a violation of section 8, and also with a violation of section 9. "The indictment or information must charge but one offense." Section 9151, Rev. Codes. Counsel for the defendant sought to avail themselves of the defect, by a motion to compel the county attorney to elect, as between the two offenses charged, the one upon which he would seek conviction; but they were in error as to their remedy. Section 9208, Revised Codes, provides that, when it appears upon the face of the information that more than one offense is charged, the objection "can only be taken by demurrer"; and, by pleading over and failing to demur, the objection was deemed to be waived so far as any question of pleading is concerned. Section 9353, Rev. Codes; State v. Mahoney, 24 Mont. 281, 61 P. 647; State v. Gordon, 35 Mont. 458, 90 P. 173.
2. The verdict returned declared the defendant "guilty of the crime of living upon the earnings of a woman engaged in prostitution as charged in the information." In other words, he was adjudged guilty of violating the provisions of section 9 of the chapter under consideration.
3. The evidence tends to prove that the defendant, who was proprietor of a rooming house, induced a woman employed by him as chambermaid to engage in prostitution and to divide with him the proceeds of her illicit practices, and it goes no further. On the contrary, the evidence is not in dispute that defendant never lived with the woman, and, so far as it tends to any conclusion upon the subject, it establishes that he had independent means and was not dependent for his living, in any degree, upon the money furnished by the prostitute.
4. The record presents this singular situation: The defendant was charged with two distinct offenses; the evidence tends to prove him guilty of one only, while the jury found him...
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