State v. Thuna

• Decision Date: 21 June 1910
• Citation: 59 Wash. 689,109 P. 331
• Court: Washington Supreme Court
• Parties: STATE v. THUNA.

109 P. 331

59 Wash. 689

STATE v. THUNA.

Supreme Court of Washington

June 21, 1910

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Max Thuna was convicted of living with a common prostitute, and he appeals. Affirmed.

Brightman & Tennant, for appellant.

George F. Vanderveer and Jerold Landon Finch, for the State.

MOUNT J.

This appeal is prosecuted from a judgment upon conviction of the crime of living with a common prostitute, alleged to have been committed on December 20, 1909. Appellant argues that the court erred in defining a common prostitute as follows 'A common prostitute is a woman who offers her body to an indiscriminate intercourse with men. Intercourse confined exclusively to one man does not make a woman a common prostitute. If a woman by words or acts or by any device invites and solicits and submits to indiscriminate intercourse, she is a common prostitute. Whether a woman is a common prostitute is a question of fact which does not depend alone upon the number of persons with whom she has had illicit intercourse, nor does it depend alone upon the question of whether she submits herself for gain. Her avocation may be known or inferred from the manner in which she plies it. The jury are to consider her general conduct and all other circumstances, if any are shown by the evidence in the case, tending to show whether or not she so holds herself out to the public.' It is contended that this instruction is erroneous because it states that the fact that a woman is a common prostitute does not depend alone upon the question whether she submits herself for gain. Several definitions by text-writers and several cases are cited which say in substance that a common prostitute is a female given to promiscuous sexual intercourse for the sake of gain. While we are of the opinion that the sake of gain is probably the most usual motive, it is not the only one, and it is not necessarily essential to constitute a common prostitute. A woman who submits herself to indiscriminate sexual intercourse with men, without hire, is certainly as much a common prostitute as one who does so solely for hire. In State v. Clark, 78 Iowa, 492, 43 N.W. 273, the court said: 'Counsel, if we understand him correctly, thinks that prostitution consists in sexual commerce for gain. It is sometimes so defined, but we think that if a woman submits to indiscriminate sexual intercourse which she invites or solicits by word or act, she is a prostitute. Her avocation may be known from the manner in which she plies it, and not from pecuniary charges and compensation gained in that manner.' See, also, State v. Rice, 56 Iowa, 431 9 N.W. 343; State v. Nixon, 18 Vt. 70, 46 Am. Dec. 135. The court therefore did not err in this instruction.

It is also argued that the court erred in receiving in evidence certain letters written by the appellant to a friend, because such letters showed that the appellant was guilty of other crimes beside the one charged and also because some of these letters did not show that the appellant was living with the woman referred to therein. Certain of the letters did show that the appellant was guilty of other crimes, but they also showed conclusively that the appellant had been for some time living with the woman; that she was a common prostitute for hire, and that appellant knew the facts. The letters were therefore clearly admissible as evidence upon this charge. It is true that other crimes may not be shown for the purpose of conviction upon the one charged, but these letters...