State v. Topham

• Citation: 41 Utah 39,123 P. 888
• Decision Date: 04 May 1912
• Docket Number: 2340
• Court: Supreme Court of Utah
• Parties: STATE v. TOPHAM

123 P. 888

41 Utah 39

STATE v. TOPHAM

No. 2340

Supreme Court of Utah

May 4, 1912

APPEAL from District Court, Third District; Hon. F. C. Loofbourow Judge.

Dora B Topham was convicted of pandering. She appeals.

REVERSED AND REMANDED WITH DIRECTIONS TO DISCHARGE ACCUSED.

E. A Rogers and Powers & Marioneaux for appellant.

A. R. Barnes, Attorney-General, and E. V. Higgins, and Geo. C. Buckle, Assistant Attorneys-General, for the State.

STRAUP, J. FRICK, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

The defendant was convicted of the crime of pandering, and was sentenced to imprisonment in the state prison for a term of eighteen years. She appeals.

The portion of the statute (Sess. Laws 1911, chap. 108) under which she was charged and convicted reads: "Any person who shall, by promises, threats, violence, or by any device or scheme, cause, induce, persuade, encourage, inveigle, or entice an inmate of a house of prostitution or place of assignation to remain therein as such inmate," is guilty of the crime of pandering and punishable by imprisonment in the state prison for a term of not more than twenty years. The information charged that the defendant on, etc., at, etc., "did then and there willfully, unlawfully, and feloniously, by promises and threats, and by divers devices and schemes, cause, induce, persuade and encourage" a particularly named female, "being then and there an inmate of a certain house of prostitution, to remain therein as such inmate; such house of prostitution being then and there known as No. 140 in what is commonly known as the stockade in Salt Lake City." To this information the defendant, before plea, interposed a general and a special demurrer alleging that the information did not state facts sufficient to constitute an offense, and especially did not sufficiently set forth the nature and cause of the accusation, nor the acts constituting the offense, nor the particular circumstances of the offense necessary to constitute a complete offense. The demurrers were overruled. After verdict, and before sentence, the defendant on the same grounds also made a motion in arrest of judgment, which motion was also denied. These rulings and those relating to insufficiency of evidence to support the verdict are complained of.

The doctrine is fundamental, and, as stated by the Supreme Court of the United States in Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, that "the constitutional right of a defendant to be informed of the nature and cause of the accusation against him entitles him to insist, at the outset, by demurrer or by motion to quash, and after verdict, by motion in arrest of judgment, that the indictment shall apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution for the same offense;" and by Mr. Justice Sanborn in Floren v. United States, 186 F. 961, 108 C. C. A. 577, that:

"On a motion in arrest of judgment, as well as on a demurrer, it is essential to the validity of an indictment that it contain averments of the facts which constitute the offense it charges so certain and specific that upon conviction or acquittal thereon it, and the judgment upon it, will constitute a complete defense to a second prosecution of the defendant for the same offense."

Many cases in support of this doctrine are there cited.

It is also elementary and, as stated by the Michigan court in People v. Marion, 28 Mich. 255, approved and quoted by this court in State v. McKenna, 24 Utah 317, 67 P. 815, that, "as every man is presumed to be innocent until proved to be guilty, he must be presumed also to be ignorant of what is intended to be proved against him, except as he is informed by the indictment or information." These doctrines are not here disputed. Our statute is in harmony with them. Comp. Laws 1907, section 4730, provides that "the information or indictment must contain . . . a statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended;" and by section 4732 that "the information or indictment must be direct and certain as it regards . . . the offense charged," and "the particular circumstances, when they are necessary to constitute a complete offense." Here, then, we have a statute which in all cases requires the information to contain "a statement of the acts constituting the offense," and to be "direct and certain as it regards the offense charged, and the particular circumstances of the offense, when they are necessary to constitute a complete offense."

Does the information meet these requirements? If it does, it is good; if not, it is bad and will not support the judgment. The material parts of the information in this respect are that the defendant did "by promises and threats, and by divers devices and schemes, cause, induce, persuade, and encourage" an inmate of a house of prostitution to remain therein as such inmate. The offense is charged in the mere language of the statute. That, the state urges, is sufficient. But that is not what the statute declares.

Of course there are cases where an indictment or information in the language of the statute is good. But there are many where that is not true. Says Mr. Bishop in 1 New Criminal Procedure, section 624: "The indictment must fully state the offense; and, if the statutory words do not suffice for this, it must be expanded beyond them." Said the Supreme Court of the United States in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588:

"It is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species--it must descend to particulars."

The same thought is expressed by Mr. Justice Frick in the case of State v. Swan, 31 Utah 336, 88 P. 12, that,

"Where an act denounced by the statute is couched in generic terms, the information must go further in stating the offense than by merely using the language of the statute," and that an information in such language is not sufficient "in those cases where the acts constituting the offense are nearly as varied as the number of cases in which the charge is made."

In order that an information merely in the words of the statute may be sufficient, the words of the statute themselves "must fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, and must state all the material facts and circumstances embraced in the definition of the offense." (22 Cyc. 340; Evans v. United States, 153 U.S. 584, 14 S.Ct. 934, 38 L.Ed. 830; United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135.)

The Supreme Court of California well expressed the rule in People v. Perales, 141 Cal. 581, 75 P. 170, in the following language:

"While it is the general rule that it is sufficient to charge an offense in the language of the statute, yet this rule is subject to the qualification that, where a more particular statement of facts is necessary in order to charge the offense definitely and certainly, it must be made. The statute may, and often does, define the offense by the use of precise and technical words which have a well-recognized meaning or designates and specifies particular acts or means whereby an offense may be committed. Under such circumstances, to charge the offense substantially in the language of the statute will be sufficient. When, however, the words or terms used in the statute have no technical or precise meaning, which of themselves imply the offense, or where the particular facts or acts which shall constitute it are not specified, but, from the general language used, many things may be done which may constitute an offense, it is then necessary, in charging an offense claimed to be embraced within the general language of the statute, to set forth the particular things or acts charged to have been done with reasonable certainty and distinctness, so that the court may determine whether an offense within the statute is charged or one over which it has jurisdiction, and so that the defendant may be advised of the particular nature of it in order to defend against it, and to plead in bar a judgment of conviction or acquittal thereof, if subsequently prosecuted."

Said the court in Commonwealth v. Milby (Ky.), 15 Ky. L. Rep. 568, 24 S.W. 625:

"The language of the statute cannot always be followed in punishments for offenses of either a criminal or a penal nature, Enough must be stated to enable the defendant to know in what particular he has violated the statute."

And in State v. Frazier, 53 Kan. 87, 36 P. 58, 42 Am. St. Rep. 274:

"The physical acts done towards the commission of the offense should be stated in the information or indictment, so that the court may see whether or not the law has been violated, and so that the accused may know to what he must make answer."

To the same effect is Thompson v. People, 96 Ill. 158, and are also many other cases.

What are here the essentials of the charged offense? The state urges to cause, induce, and encourage an inmate of a house of prostitution to remain therein as such inmate. That is one essential; but it is not all the essentials declared by the statute. It declares that "any person who shall, by promises, threats, violence, or by any device or scheme," cause, induce, etc., an inmate of such a house to remain therein, is guilty of an offense. The act or conduct of the person who...