Trozzo v. People

• Decision Date: 03 July 1911
• Citation: 51 Colo. 323,117 P. 150
• Parties: TROZZO v. PEOPLE. DOE v. SAME.
• Court: Colorado Supreme Court

117 P. 150

51 Colo. 323

TROZZO v. PEOPLE.

DOE v. SAME.

Supreme Court of Colorado, En Banc.

July 3, 1911

Error to District Court, Pueblo County; C. S. Essex, Judge.

Rafal Trozzo was convicted of crime, and he brings error. Reversed and remanded.

M. G. Saunders, for plaintiff in error.

Benjamin Griffith, Atty. Gen., and Charles O'Connor, Asst. Atty Gen. (John T. Barnett and Eugene A. Moran, of counsel), for the People.

HILL J.

The plaintiff in error was tried upon two indictments; each charged a separate offense. Both were for the violation of an act entitled 'An act concerning certain forms of prostitution and providing punishment for persons encouraging prostitution in violation of this act,' approved April 26, 1909 (Laws 1909, c. 196). The first indictment, in substance, charges him with feloniously engaging and assisting in operating and managing a certain house for the purpose of carrying on prostitution; the second, with feloniously and knowingly living on and being supported, in part, by the money and other valuable considerations realized, procured and earned by one Winnie Stevens, a female person, through the prostitution of one Blanche Bennett, another female person. By proper motion to quash the indictments, the constitutionality of this act was challenged. This motion was overruled. On motion of the district attorney, over the objections of the defendant, the causes were consolidated for trial. The defendant was convicted upon both indictments, and brings the causes here for review upon error. Four groups of assignments of error are urged. As some of them necessitate a reversal of the judgment, in view of a new trial, it is proper to consider them all. This will be done in the order presented.

It is urged that this act contravenes section 21 of article 5 of the state Constitution, in that its title contains more than one subject of legislation, and that various subjects in the act are not expressed in the title. A very able and ingenuous argument has been presented in support of this position. This section of the Constitution reads: 'No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.' From this language it will be observed that to dispose of the defendant's contentions, it is only necessary to consider: First, does the title contain but one general subject? Second, does the act contain a subject which is clearly expressed in the title? And, third, do the charges made against the defendant come within the provision of the one subject which is clearly expressed in the title?

This section of the Constitution has been before this court for consideration in several cases where it was claimed its provisions were violated. At first glance several subjects usually appear to be mentioned in the titles of a great many acts, but, as said by this court in the case of Golden Canal Co. v. Bright, 8 Colo. 144, at page 149, 6 P. 142, at page 144: 'This constitutional inhibition must receive a reasonable construction. It is enough if the bill treats of but one general subject, and that subject is expressed in the title.' In that case the title to the act under consideration read: 'An act to regulate the use of water for irrigation, and providing for settling the priority of right thereto, and for payment of the expenses thereof, and for payment of all costs and expenses incident to said regulation and use.' It was held that this title contained but one general subject properly expressed in it, which was 'to regulate the use of water for irrigation,' and that the remainder of the title refers to nothing which is not germane to the subject thus expressed. We think this position is applicable here.

The controlling provision of the title to the act in question is 'An act concerning certain forms of prostitution.' The rest of the title refers to nothing which is not germane to the subject thus expressed. The remainder, which reads 'and providing punishments for persons encouraging prostitution in violation of this act,' is germane to the subject already expressed. The punishments provided are by necessary implication properly included in that portion of the title preceding it; had this latter portion been omitted the punishments could have been properly included in the bill under the first portion of the title.

The punishment provided for a male person over the age of 18, who shall feloniously engage and assist in operating or managing a house for the purpose of carrying on prostitution, or for any male or female person, over the age of 18, who shall knowingly live on, or be supported in whole or in part, by the money, etc., procured or earned by any female person, through the prostitution of any other female person, would certainly come under the provisions of a title which reads 'An act concerning certain forms of prostitution' or 'An act concerning prostitution.' These matters all concern prostitution or certain forms of prostitution.

In the case of Clare v. People, 9 Colo. 122, 10 P. 799, the title of the act under consideration read 'An act to facilitate the recovery of ore taken by theft or trespass, to regulate sale and disposition of the same, and for the better protection of mineowners.' It was held that this title contained but one general subject clearly expressed, and that the addition of subdivisions thereof did not necessarily vitiate the whole title.

In Brown v. Elder, 32 Colo. 527, 77 P. 853, this court held that the inheritance tax provisions contained in the General Revenue Act of 1902 did not embrace separate and distinct subjects from the one expressed in the title of the act, which reads, 'An act in relation to public revenue, and repealing all previous acts or parts of acts in conflict therewith.' Laws 1902, c. 3. It was further held that this title was sufficiently broad to include all the provisions concerning the inheritance tax and was not so general as to be misleading.

In Re Breene, 14 Colo. at page 405, 24 P. at page 4, in commenting upon this section, this court said: '* * * The General Assembly may, within reason, make the title of a bill as comprehensive as it chooses, and thus cover legislation relating to many minor but associated matters. For example, an act entitled 'An act in relation to municipal corporations' may provide for the organizatin, government, powers, duties, offices, and revenues of such corporations, as well as for all other matters pertaining thereto. 'The generality of a title,' says Judge Cooley, 'is therefore no objection to it, so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.''

In the case of Anderson v. Grand Valley Irrigation District, 35 Colo. 525, 85 P. 313, the title attempted to cover all conceivable phases pertaining to procedure involved in irrigation districts. It was held that the first clause in the title 'An act to provide for the formation and government of irrigation districts' (Laws 1901, c. 87) is broad and comprehensive enough to include all other provisions found in the act, and that the remainder of the title might be entirely disregarded as surplusage.

When tested by the rules announced in the foregoing authorities, it is clear that there is but one general subject treated in the title of the act under consideration, and that all matters contained in the charges against the defendant are included in, and are a part of, the one subject, to-wit, prostitution, which is sufficiently named in the title of the act, and that the charges against this defendant come within the provisions of the act, which, in turn, are likewise covered by the title. The court committed no error in holding that the act was not subject to the constitutional objections urged.

It is next claimed that the court erred in consolidating the cases for trial. It is claimed that the two indictments charged two separate and distinct offenses, which did not arise or grow out of the same transaction, or involve the same crime; that each required separate testimony and separate defenses. Section 1953, Rev. Stat. 1908, reads, 'Whenever there are or shall be several charges against any person or persons for the same act or transaction, or for one or more acts or transaction connected together, or for one or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts, and if two or more indictments are found in such cases the court may order them consolidated.'

While the indictments do not show it upon their faces, the district attorney stated in open court at the time they were consolidated, that the two indictments grew out of the same or connected transactions. We think the record sustains him in this respect. The crimes charged are both for the violation of the same section of the statute. They are for acts and transactions of the same class of crimes and in this case, as disclosed by the record for acts and transactions connected, done and performed at the same time and place the facts were intermingled; this brought them within the provisions of this act. The court was justified in ordering their consolidation for the purposes of a trial, and the defendant was in no respect prejudiced thereby. Cummins v. People, 4 Colo.App. 71, 34 P. 734; Bergdahl v. People, 27 Colo. 302, 61 P. 228; Roland v. People, 23 Colo. 283, 47 P. 269; Short v. People, 27 Colo. 175, ...