Woodson v. Fort Smith

• Decision Date: 29 September 1924
• Docket Number: 137
• Citation: 264 S.W. 934,165 Ark. 443
• Parties: WOODSON v. FORT SMITH
• Court: Arkansas Supreme Court

264 S.W. 934

165 Ark. 443

WOODSON v. FORT SMITH

No. 137

Supreme Court of Arkansas

September 29, 1924

Appeal from Sebastian Circuit Court, Fort Smith District; John E Tatum, Judge; reversed.

Judgment reversed and cause dismissed.

Holland Holland & Holland and Roy Gean, for appellant.

Geo W. Dodd, for appellee.

OPINION

WOOD, J.

The appellant was convicted under an ordinance of the city of Fort Smith which provides as follows:

"Every bawd, prostitute, or loose woman who shall, in said city, occupy or use any room or tenement for the purpose of prostitution or assignation, and every person who shall in said city suffer or permit any room or tenement in his or her possession or control to be kept, used or occupied for any such purpose, and every male person who shall frequent or visit any room or tenement so kept, used or occupied for the purpose of illicit intercourse, shall be deemed guilty of a misdemeanor and a violation of this ordinance."

1. The appellant had been formerly tried and acquitted on a charge of "running a disorderly house" in the city of Fort Smith, and she pleaded former acquittal. "In order to support a plea of former conviction or acquittal it is essential to show that the two offenses are identical. " Johnson v. State, 101 Ark. 159, 141 S.W. 493. The common-law offense of keeping a disorderly house is entirely separate and distinct from the specific offenses enumerated in the ordinance under which the appellant was convicted. The keeping of a disorderly house "may consist in its drawing together idle, vicious, dissolute or disorderly persons engaged in unlawful or immoral practices, thereby endangering the public peace and promoting immorality." Thatcher v. State, 48 Ark. 60 at 60-64, 2 S.W. 343. One might be convicted of the common-law offense of running a disorderly house without any testimony whatever as to the specific acts necessary to constitute the offenses embraced in the ordinance, and one might be acquitted of the offense of running a disorderly house and yet be convicted on the same proof of some one of the specific offenses named in the ordinance. "The safest general rule," says Corpus Juris, "is that the two offenses must be in substance precisely the same, or of the same nature, or of the same species, so that the evidence which proves the one would prove the other. Or, if this is not the case, then the one crime must be an ingredient of the other." 16 C. J., p. 264, § 444. The court did not err in overruling appellant's plea of former acquittal.

2. The testimony for the city on which the appellant was convicted tended to prove that the prosecuting witness and the sheriff went to the house where the appellant lived, on June 15 1923, and found her at home. She had on a slip, and did not have on her shoes. Leo Bercher, a married man, was also in the front room of the house, with his shoes off. He had on his trousers. He was sitting on the side of the bed. It was seven or eight o'clock at night. The blinds were down in the front room. Bercher was in the farthest room from the landing of the stairway. The appellant came out of that room. This was not the first time that the witness went with the officer to visit the house. The first time he went there some one was sick in bed. Witness supposed it was Leo Bercher. Bercher at that time told the witness to come in. Witness never saw anything wrong in the conduct of Mrs. Woodson up there, only she was in the house with Bercher. Bercher claimed to own the house. He saw nothing wrong in the conduct of Bercher, only he and appellant were there, and they had their shoes off. The immoral purpose which witness saw was that she was barefooted and wearing a house-dress with short sleeves and low neck, made straight all the way down. The bed in the room where Bercher was sitting looked as though some one had been sitting down or wallowing on it. Bercher claimed that he was boarding there. In entering the house the witness had to go up the back stairway. The parties were in the room at the end of a hall. The room Bercher was in was not locked, but the door that barred his room from the hallway was locked before they got there. It was three minutes after they knocked before they were admitted. The...