State v. Reed

• Decision Date: 19 February 1917
• Docket Number: 3826.
• Citation: 163 P. 477,53 Mont. 292
• Parties: STATE v. REED.
• Court: Montana Supreme Court

163 P. 477

53 Mont. 292

STATE v. REED.

No. 3826.

Supreme Court of Montana

February 19, 1917

Appeal from District Court, Silver Bow County; Michael Donlan Judge.

By a general verdict J. E. Reed was found guilty of a violation of the Donlan Act (Laws 1911, c. 1). From a judgment entered on the verdict, and from an order denying him a new trial, he appeals. Reversed and remanded.

Harry Meyer and Chas. F. Juttner, both of Butte, for appellant.

J. B Poindexter, Atty. Gen., and C. S. Wagner, Asst. Atty. Gen for the State.

SANNER J.

By a general verdict of guilty J. E. Reed was convicted of a violation of what is known as the Donlan Act (Session Laws 1911, c. 1), and from the judgment entered on the verdict, as well as from an order denying him a new trial, he appeals.

The information is in four counts; but the state concedes that under the evidence the conviction can stand, if at all, only upon the first count, which charges that the appellant "did willfully, unlawfully, and feloniously attempt to induce, entice, procure and compel Jennie Doe, a female person, to reside with Joseph Kandelhofer for immoral purposes," contrary to section 2 of said act.

The facts, as presented on behalf of the prosecution by evidence to which no serious exception is taken, are substantially these: Diamondville, Wyo., is a mining camp consisting largely of Italians and Austrians, and there one Joseph Kandelhofer maintains a "boarding house"; this place has two stories, and on the ground floor are a barroom, leading off from which is a hallway with doors on each side, and further on a dining room; the doors leading off from the hallway give entrance to a wineroom and to bedrooms; the wineroom is a dance hall, and the bedrooms are occupied by miners who lodge at the place; girls and young women were employed there whose principal duties were to dance with men in the wineroom, drink with men at the bar, and otherwise "entertain" the men who frequented the place, during all hours from 7 p. m. to 8 a. m. On or about February 17, 1915, the appellant, who was conducting an employment agency at Butte, was applied to by Dorothy Burger, a girl 17 years old, for a position; he said he could furnish her a position as waitress in a hotel kept by Joseph Kandelhofer at Diamondville, Wyo., the wages to be $30 per month, with room and board; she accepted, and he promised to have transportation for her the next day; on the next day he said he had her ticket, that the place was a sporting house, and that her duties would be to dance, play cards, drink beer, and entertain men; she then consulted a woman friend, who in turn reported to the chief of police, and he, after satisfying himself as to the character of the place, planned that she should take the ticket and board the train en route for Diamondville, but be taken off at Silver Bow; she again sought the appellant, who gave her a letter addressed to Joseph Kandelhofer at Diamondville, Wyo., and escorted her to the station, where he got and gave her the ticket, and she went upon the train; she was met at Silver Bow by officers, left the train, and returned to Butte. The letter just referred to was one of introduction, and also a notification to Kandelhofer that another girl "of good appearance," named Bessie Krambeal, would come on receipt of transportation; this girl, engaged by the appellant to go to the same house, had been told by him that among her duties she would have to dance and entertain men; that the place was "a kind of a boarding house with a bar in it and a dance hall," and she had been given to understand that it was "not a very moral place"; her arrest on the following day prevented her from going. Other evidence, to which exception is taken, tends to show that the place was not one where a girl could live for any length of time and be respectable; that it was, after the events here involved, closed as a public nuisance; and that the appellant knew that girls who were "good lookers" rather than efficient cooks and waitresses were the chief desideratum there.

1. The first contention is that no case was made for judicial cognizance because the purposes for which Dorothy Burger was to go to Diamondville were not immoral purposes within the meaning of the Donlan Act. In State v. Harper, 48 Mont. 456, 138 P. 495, 51 L. R. A. (N. S.) 157, Ann. Cas. 1915D, 1017, we took occasion to show the similarity of object of both the Donlan Act, as operative within this state, and the Mann Act of the national Congress, as operative in interstate commerce; such object being to suppress the traffic in women and girls for immoral purposes. In the Mann Act the thing forbidden is the interstate transportation of women "for prostitution or debauchery, or any other immoral purpose," while the Donlan Act is directed to every form of traffic in women "for prostitution or concubinage, or any other immoral purpose"; and we think it manifest that the meaning of the phrase "or any other immoral purpose" is the same in each act. Appellant insists that the rule ejusdem generis must be applied and the reference taken to mean immoral acts of like character. We think the rule ejusdem generis does apply, but its correct application cannot absolve appellant upon the circumstances here presented. In Athanasaw v. United States, 227 U.S. 326, 33 S.Ct. 285, 57 L.Ed. 528, Ann. Cas. 1913E, 911, the national Supreme Court applied the Mann Act to a state of facts which, so far as undisputed, was not materially different from that at bar, and said:

"The instructions of the court were justified by the statute. It is true that the court did not give to the word 'debauchery' or to the purpose of the statute the limited definition and extent contended for by defendants, nor did the court make the guilt of the defendants to depend upon having the intent themselves to debauch the girl or to intend that some one else should do so. In the view of the court that statute had a more comprehensive prohibition and was designed to reach acts which might ultimately lead to that phase of debauchery which consisted in 'sexual actions.' * * * The court put it to the jury to consider whether the employment to which the defendants called the girl and the influences with which they surrounded her tended 'to induce her to give herself up to a condition of

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