State v. Poole

• Decision Date: 07 March 1906
• Court: Washington Supreme Court
• Parties: STATE v. POOLE.

84 P. 727

42 Wash. 192

STATE v. POOLE.

Supreme Court of Washington

March 7, 1906

Appeal from Superior Court, Spokane County; W. T. Warren, Judge.

L. M Poole was convicted of accepting the earnings of a prostitute, and he appeals. Affirmed.

Del Cary Smith and George M. Ferris, for appellant.

Richard M. Barnhart, A. J. Laughon, and Fred C. Pugh, for the State.

DUNBAR J.

The following is the information upon which appellant was convicted: 'That the said defendant, L. M. Poole, on the 23d day of January, 1905, in the county of Spokane, state of Washington, then and there being and then and there being a male person, did then and there willfully, unlawfully and feloniously live with, live off of, and accept the earnings of, and for a long time previous to said date had then and there been living with, and living off of and accepting the earnings of, one Freda Roberts, then and there being a female and a prostitute.' Appellant moved in the lower court to quash and set aside the information, which motion was overruled. He then demurred to the information, and the demurrer was likewise overruled. A plea of not guilty was then entered, trial was had, and a verdict of guilty was returned by the jury. After the rendition of the verdict appellant moved to set aside the verdict and grant a new trial, upon the several grounds set forth in the motion. The motion was overruled, and appellant was sentenced to a term of five years in the penitentiary.

The errors assigned, that the court erred in denying appellant's motion to quash and set aside the information, and in overruling appellant's demurrer to the information, may be considered together, and are based upon the fact that the enactment of chapter 123, p. 230, Sess. Laws 1903, upon which the information is based, is obnoxious to article 2, § 51, of the state Constitution which provides that no bill shall embrace more than one subject, which shall be expressed in the title. The title is as follows: 'An act relating to husbands who connive at the prostitution of their wives, and to persons who live off of or accept the earnings of prostitutes, or solicit persons to go to houses of ill fame for immoral purposes, or who permit or solicit females under eighteen years of age to enter any house of ill fame, or other houses for immoral purposes, declaring the violation hereof a felony and fixing a punishment.' It will be noted that in the title of the act there is no mention of anything relating to a male person who lives with a prostitute. This particular discrepancy between the act and the title has never heretofore been called to the attention of this court, and we are inclined to think that the title is not sufficiently broad to cover that provision of the act which relates to any male person who lives with a prostitute, and that therefore one cannot be indicted for that act. But that, under the general and undisputed rule, does not destroy the validity of the remainder of the act, because it is not connected with the act, the title of which is omitted, in such a way as to embarrass in any manner the execution of the subsequent provisions.

It is contended, however, by the appellant, who does not maintain that the balance of the act is rendered unconstitutional by the omission in the title which we have just mentioned, that the court instructed the jury that living with a prostitute was one of the material allegations of the information to be proven beyond a reasonable doubt, and that this was clearly error, as living with a prostitute is not a crime under the law on which the information is based, for the reason that the same is not embraced in the title of the act. We have carefully examined the instructions of the court and are unable to conceive that there was any prejudicial error in this respect. Instruction No. 3 is as follows: 'In order to find the defendant guilty of the crime charged, you must find beyond a reasonable doubt, that the defendant, L. M. Poole, did, upon the 23d day of January, 1905, in Spokane county, state of Washington, willfully, unlawfully and feloniously live off of and accept the earnings of, and for a long time previous to said date had there been living with, and living off of and accepting the earnings of, one Freda Roberts, said Freda Roberts then and there being a female and a prostitute, and if you should entertain a reasonable doubt as to the truth of the allegations of said information, then it is your duty to give the defendant the benefit of said doubt, and to acquit him.' In this instruction the court imposed upon the state a greater burden than the law imposed, viz., the burden of proving, not only that the defendant had lived off of the earnings of Freda Roberts, but that he had for a long time previous to said date been living with her; and No. 4 is to the effect that it is not necessary for the state to prove both of these charges made, in order to establish the offense charges (evidently referring to the living off of and accepting the earnings), 'but if you should find from the evidence beyond a reasonable doubt that the defendant either lived off of, or accepted the earnings of, Freda Roberts, at the time and place charged, and that she was then and there a prostitute, then you should find the defendant guilty as charged in the information.' So far, we think, there was nothing in the instructions of which the appellant could complain, although the state might justly have done so. But the court further on, in paragraphs 9 and 10, put this question beyond a peradventure by stating to the jury that the information was founded upon section 2 of an act of the Legislature of 1903, which provides that any male person who lives with, or live off of, in whole or in part, or accepts the earnings of a prostitute shall be deemed guilty of a felony. It then proceeds: 'The jury are further instructed that living with a prostitute as alleged in the information herein would not of itself render defendant guilty as charged in the information, but that if the jury should find from the evidence beyond a reasonable doubt that the defendant lived with a prostitute, but did not live off of or from her earnings, in whole or in part, or did not accept her earnings, in such an event the jury could not find the defendant guilty, but on the other hand if you find from the evidence beyond a reasonable doubt that the defendant lived with a prostitute, and did live off from and upon her earnings in whole or in part, or did accept the earnings of such prostitute, if you should so find beyond a reasonable doubt, then your verdict should be guilty as charged.' So that it will be seen that the instruction, while erroneous under the theory that a portion of the act is unconstitutional, was error committed against the state and not against the appellant. We think the instructions as a whole fairly stated the law outside of the matter which we have just mentioned, and that no reversible error was committed either in giving instructions or in refusing to give.

It is contended that the court erred in the admission of the testimony of William Shannon, as to statements made by appellant and Freda Roberts when appellant was under arrest...