State v. McCornish

• Decision Date: 17 June 1921
• Docket Number: 3619
• Citation: 59 Utah 58,201 P. 637
• Court: Utah Supreme Court
• Parties: STATE v. McCORNISH

201 P. 637

59 Utah 58

STATE v. McCORNISH

No. 3619

Supreme Court of Utah

June 17, 1921

Rehearing Denied November 10, 1921.

Appeal from District Court, Third District, Salt Lake County; H. M Stephens, Judge.

John McCornish was convicted of pandering and he appeals.

REVERSED AND REMANDED.

King &amp Schulder, of Salt Lake City, for appellant.

Harvey H. Cluff, Atty. Gen., and W. Hal Farr, Asst. Atty. Gen., for the state.

WEBER J., FRICK, J. CORFMAN, C. J., and GIDEON, THURMAN, and FRICK, JJ., WEBER, concurring.

OPINION

WEBER, J.

The defendant appeals from a judgment of conviction in the district court of Salt Lake county on the charge of pandering. The charging part of the information is in substance as follows:

That the said John McCornish, being at the time a bell boy employed in the Wilson Hotel, did then and there willfully, unlawfully, knowingly, and feloniously procure, direct, and send a female person, to wit, Marie Morgan, to room No. 131 of said hotel for the purpose of prostitution with another male person, to wit, Joe Bringhurst, who was then and there occupying said room.

To this information defendant interposed a demurrer, alleging that the statute upon which the information is based is null and void, for the reason "that the statute, and such portions of it as relate to the offense described in the information, was not passed in accordance with the requirements of the law." This demurrer was overruled, the ruling is assigned as error, and thereby the validity of that part of chapter 108, Laws 1911, as amended by chapter 6, Laws 1915 (now chapter 25, Comp. Laws 1917), is challenged.

Counsel argue that the portion of the act under which appellant was prosecuted is unconstitutional and void, for the reason that it is in violation of section 23, art. 6, of the Constitution of Utah, which provides that "no bill shall be passed containing more than one subject, which shall be clearly expressed in its title." By chapter 6, Laws 1915, section 3 of chapter 108, Laws 1911, was amended; the title of the amended Act being:

"Receiving Money from Fallen Women. An act to amend Sec. 3, Ch. 108, Laws of Utah 1911, relating to receiving money from fallen women."

Section 3 of the act of 1911 relates entirely to receiving money from fallen women, and prescribes the penalty, while the amended section contains, in addition, provisions making it a felony for any person to procure a female for the purpose of prostitution for another male person, by either personal solicitation, messenger, telephone call, or other means, and makes it a felony to send or direct any female person to the sleeping apartment or lodging room of any male person, or to any other place for the purpose of prostitution, whether for hire or commission in the proceeds of the prostitution, or for any other consideration of value from either the man for whom such female was procured or from the female so procured; that every messenger, hotel or rooming house proprietor, clerk or other employee of such place, every chauffeur or hack driver, or any other person, who by any means sends, directs, takes, or conveys any female person to any room or other place for the purpose of prostitution or who keeps a list of female persons to call or be called for the purpose of prostitution shall be deemed guilty of a felony; that every hotel, lodging house or rooming house keeper or any other person having charge of such places, who knowingly allows rooms of such places to be used for the purpose of prostitution shall be guilty of a felony. The amendment also contains other provisions of a similar nature.

It is argued by counsel for appellant that the subject of the act of 1911 is "pandering," which is described in great detail in section 1 of the act; the substance, however, being that pandering is the procurement of a female inmate for a house of prostitution, and enticing, persuading, encouraging, inveigling, or inducing, a female person to become a prostitute; that "receiving money from fallen women" is a separate and distinct matter, not included in the definition of "pandering" as contained in said section 1, c. 108, Laws 1911; that section 3, therefore, is separate and distinct from pandering, as defined, and creates a new crime, as the subhead of said section provided, to wit, "Receiving Money from Fallen Women." Counsel therefore conclude that:

"It is therefore obvious that chapter 108, as it is arranged and divided under the one head, subject and title of pandering, treats of two separate and distinct crimes, to wit: (1) Pandering, as defined by the statute; and (2) receiving money from fallen women, and that but one subject is expressed in the title of the act."

The subjects included in the act may be distinct in one sense, nevertheless they are cognate and related to each other and are properly included in one act and under one title. As stated in Marioneaux v. Cutler, 32 Utah 475 91 P. 355, the Legislature may not arbitrarily make one subject out of that which naturally and logically constitutes two; but when cognate subjects are combined in one act the vice of duplicity is avoided, and they constitute but one legislative subject. It has been said that a title was never intended to be an index to the law. If the title, in its broad and popular and not in its technical and restricted sense, gives the general subject of the enacted legislation, it is sufficient. So, in the act in question, everything therein included is related to the one purpose of the act, and that is the suppression of pandering, the prevention of prostitution, and the suppression and punishment of kindred crimes. Section 3 of the 1911 law, which was all that was amended, relates to the subject of receiving money from fallen women. By the amendment of 1915 that section is amplified, and a number of cognate and related subjects are added.

Referring to section 23, art. 6, of the Constitution, quoted above, and particularly as applied to amendatory acts, the general rules of construction and interpretation have been declared by this court in Elder v. Edwards, 34 Utah at page 18, 95 P. 367, to be: (1) That the constitutional provision now under consideration should be liberally construed; (2) that the provision should be applied so as not to hamper the lawmaking power in framing and adopting comprehensive measures covering the whole subject, the branches of which may be numerous, but where all have some direct connection with or relation to the principal subject treated; (3) that the constitutional provision should be so applied as to guard against the real evil which it was intended to meet; (4) that no hard and fast rule can be formulated which is applicable to all cases, but each case must to a very large extent be determined in accordance with the peculiar circumstances and conditions thereof, and that the decisions of the courts are valuable merely as illustrations or guides in applying these general rules. The doctrine of the Edler Case, 34 Utah 13, 95 P. 367, has been approved and applied in Martineau v. Crabbe, 46 Utah 327, 150 P. 301; Salt Lake City v. Wilson, 46 Utah 60, 148 P. 1104; Naylor v. Crabbe, 45 Utah 617, 148 P. 359; State v. Erickson, 47 Utah 452, 154 P. 948; Mutart v. Pratt, 51 Utah 246, 170 P. 67.

It is also well-settled doctrine that every presumption is in favor of the constitutionality of a statute and that in case of doubt the statute must be held to be valid. It is equally well settled (see cases above cited) that if the matter that is objectionable in an amendatory act could have been included in the original, under the title of that act, then the amendatory act is not vulnerable to the objection that it contains a dual subject. Applying these principles and rules to the amendatory act, the validity of which is challenged, it is plain and clear that the amendment of 1915 is not repugnant to the Constitution, and that the law is valid.

The next assignment of error is that there was no evidence to prove that appellant was an employee of the Wilson Hotel at the time of the alleged crime. One of the issues submitted to the jury was that defendant was an employee of said hotel. By its verdict the jury answered that question in the affirmative. At the time of the alleged commission of the crime by defendant, he was performing the duties of a bell boy at the hotel; he wore the hotel's uniform; he answered telephone calls; he conducted guests to their rooms and performed such other services as bell boys usually perform. That certainly was prima facie evidence that he was an employee of the hotel at the time. The jury evidently accepted this prima facie evidence in preference to the evidence produced by the defendant. That was the...