State v. Purcell

• Citation: 228 P. 796,39 Idaho 642
• Parties: STATE, Respondent, v. WALTER PURCELL, Appellant
• Decision Date: 15 August 1924
• Court: United States State Supreme Court of Idaho

228 P. 796

39 Idaho 642

STATE, Respondent, v. WALTER PURCELL, Appellant

Supreme Court of Idaho

August 15, 1924

CRIMINAL LAW-WHITE SLAVE ACT-CONFLICT BETWEEN SESSION LAW AND CODE-INSTRUCTIONS.

1. Where there is a conflict between an act as it was passed by the legislature and as it appears in a revision or codification of the entire body of the law, the act as originally passed will govern.

2. The act denounced by section 9, chap. 205, p. 673, Sess. Laws 1911, is that of a male person who cohabits with a common prostitute and lives wholly or in part upon her earnings derived from her unlawful occupation.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Judgment of conviction for felony. Reversed and remanded.

Reversed and remanded.

A. F James and Morgan & Smith, for Appellant.

The term "live with" as employed in C. S., sec. 8276 and in the information in this case, should be construed to mean the same as the term "cohabit"; to live together as husband and wife. (United States v Kuntze, 2 Idaho 480, 21 P. 407; Cannon v. United States, 116 U.S. 55, 6 S.Ct. 278, 29 L.Ed. 561; Richey v. State, 172 Ind. 134, 139 Am. St. 362, 87 N.E. 1032; 2 Words and Phrases Judicially Defined, 1243 et seq.; 1 Words and Phrases, 2d series, 750 et seq.; State v. Naylor, 68 Ore. 139, 136 P. 889.)

The words "pimping defined," appearing in C. S., sec. 8276, were not included in the act of the legislature by which said section became a law and are not a part of the statute. (Sess. Laws 1911, chap. 205, sec. 9, p. 676; C. S., sec. 1, and historical note thereto appended.)

The language of the statute, sec. 8276, is so vague, indefinite and uncertain as to be unenforceable and void and the information, in the charging part of which a portion of said statute has been copied and adopted, does not state facts sufficient to constitute a public offense. (Capital Traction Co. v. United States, 34 App. Cas. D. C. 591; United States v. Reese, 92 U.S. 214, 23 L.Ed. 563; Hayes v. State, 11 Ga.App. 371, 75 S.E. 523; Brown v. State, 137 Wis. 543, 119 N.W. 338; Griffen v. State, 86 Tex. Crim. 498, 218 S.W. 494; Augustine v. State, 41 Tex. Crim. 59, 52 S.W. 77; Czarra v. Board of Medical Supervisors, 25 App. Cas. D. C. 443; James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979; State v. Gaster, 45 La. Ann. 636, 12 So. 739; State v. Partlow, 91 N.C. 550, 49 Am. Rep. 652; Cogdell v. State, 81 Tex. Crim. 66, 193 S.W. 675; Mathews v. Murphy, 23 Ky. L. 750, 63 S.W. 785, 54 L. R. A. 415; Louisville & N. R. R. Co. v. Commonwealth, 99 Ky. 132, 59 Am. St. 457, 35 S.W. 129, 33 L. R. A. 209; Stoutenburgh v. Frazier, 16 App. D. C. 229, 48 L. R. A. 220; Hewitt v. Board of Medical Examiners, 148 Cal. 590, 113 Am. St. 315, 7 Ann. Cas. 750, 84 P. 39, 3 L. R. A., N. S., 896; State v. Lantz, 90 W.Va. 738, 111 S.E. 766; United States v. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516; International Harvester Co. v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 58 L.Ed. 1284; Collins v. Kentucky, 234 U.S. 634, 34 S.Ct. 924, 58 L.Ed. 1510; American Seeding Machine Co. v. Kentucky, 236 U.S. 660, 35 S.Ct. 456, 59 L.Ed. 773; City of Watertown v. Christnacht, 39 S.D. 920, 164 N.W. 62.)

Changes made by a revision of the statute will not be regarded as altering the law unless it is clear that such was the intention, and, if the Revised Statute is ambiguous or susceptible of two constructions, reference may be had to prior statutes for the purpose of ascertaining the intention. (Libby v. Pelham, 30 Idaho 614, 166 P. 575; Manson v. Village of Chisholm, 142 Minn. 94, 170 N.W. 924; People's Ferry Co. v. Casco Bay Lines, 121 Me. 108, 115 A. 815; Camden Auto Co. v. Mansfield, 120 Me. 187, 113 A. 175; In re Derinza, 229 Mass. 435, 118 N.E. 942.)

The court cannot do that which the legislature perhaps intended to do but wholly failed to do. (Holmberg v. Jones, 7 Idaho 752, 65 P. 563.)

"To constitute the offense, the act must be both within the letter and spirit of the statute defining it." (2 Lewis' Sutherland on Statutory Construction, p. 965.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

If the intention of the statute is apparent, and if the words are sufficiently flexible to admit of some other construction, that construction will be adopted which will effectuate the intention of the legislature. (In re Segregation of School District No. 58, 34 Idaho 222, 200 P. 138.)

Words and phrases will be construed according to the context and the approved usage of the language. (C. S., sec. 9455; Adams v. Lansdon, 18 Idaho 483, 110 P. 280.)

The principle of strict construction does not exclude the application of common sense to the terms made use of in an act in order to avoid an absurdity which the legislature ought not to be presumed to have intended. (2 Lewis' Sutherland on Stat. Construction, sec. 528, p. 981; Standard Oil Co. v. United States, 221 U.S. 1, Ann. Cas. 1912D, 734, 31 S.Ct. 502, 55 L.Ed. 619, 34 L. R. A., N. S., 834; Black on Interpretation of Laws, sec. 36; State v. Dingman, 37 Idaho 253, 219 P. 760; State v. Morris, 28 Idaho 599, 155 P. 296, L. R. A. 1916D, 573; Ex parte Moore, 38 Idaho 506, 224 P. 662.)

Instruction No. 7 given by the court is correct. (Eddy v. Cunningham, 69 Wash. 544, 125 P. 961; State v. Everett, 121 Wash. 322, 209 P. 519.)

Instruction No. 3 is not error. (Eddy v. Cunningham, supra; State v. Kanakaris, 54 Mont. 180, 169 P. 42.)

The court will give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties. (State v. Sims, 35 Idaho 505, 206 P. 1045; State v. Dong Sing, 35 Idaho 616, 208 P. 860; C. S., secs. 9084, 9191; State v. Marren, 17 Idaho 766, 791, 107 P. 993.)

It is true that the code commissioner removed the ambiguity by the use of the words "or depend," but he did not change the law. His change was nothing more or less than in the nature of a recommendation to the legislature. The legislature, acting upon his suggestion and recommendation, enacted into law C. S., sec. 6779, as it now stands. (Central of Georgia Ry. Co. v. State, 104 Ga. 831, 31 S.E. 531, 42 L. R. A. 518.)

The Compiled Laws of Idaho were passed as an act by the legislature and approved by the Governor of this state. It is, therefore, a valid law irrespective of authority or lack of the same on the part of the code commissioner to make any changes therein. (Ex parte Donnellan, 49 Wash. 460, 95 P. 1085.)

WILLIAM A. LEE, J. McCarthy, C. J., concurs; Wm. E. Lee, J., concurs in the result. BUDGE, J., Dissenting.

OPINION

WILLIAM A. LEE, J.

--Appellant was charged in the district court, for Blaine county, with a felony, the charging part of the information being:

"That the said Walter Purcell on the 1st day of June, 1923, in the county of Blaine, state of Idaho, then and there being, did wilfully, unlawfully, and feloniously then and there live with, and for a long time previous thereto, had been living with, one Madge Barber, she, the said Madge Barber, being then and there a woman of bad repute."

The cause was tried by the court with a jury and upon a verdict of guilty appellant was sentenced to imprisonment in the penitentiary for not less than two nor more than twenty years, from which judgment this appeal is taken upon fifteen enumerated errors.

The prosecution is based upon the wording of the statute as it appears in C. S., sec. 8276, which is the same as sec. 6779 of the Compiled Laws as revised by the code commissioner and reported to the fifteenth session of the legislature. The state contends that C. S., sec. 8276, correctly states the law, and the learned trial judge instructed the jury in the language of this section. The original act passed by the legislature, Sess. Laws 1911, chap. 205, p. 673, commonly known as the White Slave Act, is entitled:

"An Act to prevent the importation into this state or the exportation from this state of women and girls for immoral purposes; prohibiting the keeping, maintaining, controlling, supporting or harboring of any woman or girl for immoral purposes, and prescribing the punishment therefor."

Section 9 of the act reads:

"Sec. 9. Any person who shall live with, in whole or in part, upon the earnings of a common prostitute or woman of bad repute, shall be guilty of a felony and, on conviction thereof, shall be punishable by imprisonment in the state prison for a period of not less than one nor more than twenty years."

This section, as modified by the code commissioner, reads:

"Sec. 8276. Pimping defined. Any person who shall live with, or depend in whole or in part, upon the earnings of a common prostitute or woman of bad repute, shall be guilty of a felony, and, on conviction thereof, shall be punishable by imprisonment in the state prison for a period of not less than one nor more than 20 years."

It differs from the law as enacted by the legislature, in two particulars: first, the words "Pimping defined" were added by the commissioner; and secondly, the words "or depend" were interpolated into the body of the section by the commissioner.

Counsel for appellant have filed a supplemental brief wherein they contend that the changes made by the commissioner are not a part of the law and materially change its meaning to the prejudice of appellant. The state replies, and admits that the meaning of the original section 9 as found in Sess. Laws 1911, chap. 205, is changed by the adoption of the Compiled Laws. We will first consider the question presented by these supplemental briefs.

In Libby v. Pelham, 30 Idaho 614, 166 P. 575, the court had under consideration the construction to be given secs 258 and 260 of the Revised Statutes of 1887 and the Revis...