{ "id": 1551703, "name": "Southwick v. State", "name_abbreviation": "Southwick v. State", "decision_date": "1916-11-20", "docket_number": "", "first_page": "188", "last_page": "193", "citations": [ { "type": "official", "cite": "126 Ark. 188" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "111 Ark. 214", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540409 ], "opinion_index": -1, "case_paths": [ "/ark/111/0214-01" ] }, { "cite": "34 Ark. 321", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875675 ], "weight": 3, "pin_cites": [ { "page": "393" }, { "page": "413" } ], "opinion_index": -1, "case_paths": [ "/ark/34/0321-01" ] }, { "cite": "110 Ark. 318", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337059 ], "opinion_index": -1, "case_paths": [ "/ark/110/0318-01" ] }, { "cite": "94 Ark. 327", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1545386 ], "opinion_index": 0, "case_paths": [ "/ark/94/0327-01" ] }, { "cite": "37 Ark. 408", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1870956 ], "opinion_index": 0, "case_paths": [ "/ark/37/0408-01" ] } ], "analysis": { "cardinality": 519, "char_count": 11252, "ocr_confidence": 0.449, "pagerank": { "raw": 2.3135444007935923e-07, "percentile": 0.7887311190729652 }, "sha256": "451f0915e3f3cc030d4911a07c2c813537022eafef770625e1766c3d7417a53f", "simhash": "1:3265e5e02079b585", "word_count": 1993 }, "last_updated": "2023-07-14T14:43:49.050580+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Humphreys, J., not participating." ], "parties": [ "Southwick v. State." ], "opinions": [ { "text": "Wood, J.\nAppellant was convicted under Act 105 of the Acts of 1913, page 407, of the crime of pandering.' The charging part of the indictment is as follows: \u201cSaid C. E. Southwick, in the county and State aforesaid, on the 13th day of April, A. D. 1916, did unlawfully and feloniously, by force, fraud, intimidation or threats,- and by the use of his position of confidence and authority, cause his wife, Leetta Southwick, to lead a life of prostitution, and procured other persons to induce his wife to lead a life of prostitution, and to have intercourse with her, he being then and there her husband, and she being then and there his wife, against the peace and dignity of the State of Arkansas.\u201d\nThe section of the act under which appellant was indicted reads: \u201cAny person who, by force, fraud, intimidation or threats, places or leaves, or procures any other person or persons to place or leave, his wife in a house of prostitution or to lead a life of prostitution, shall be guilty of a felony and upon conviction thereof shall be sentenced to the penitentiary for not less than two nor more than ten years.\u201d\nPandering is but one offense, under the statute, and may be committed in the different modes therein enumerated. The indictment charges the offense as having b\u00f3en committed in the mode mentioned in section 2 of the act.\n\u201cIntimidation,\u201d in law, is \u201cthe use of violence or threats to influence the conduct or compel the consent of another.\u201d To intimidate is \u201cto restrain by threats.\u201d- Webster\u2019s Dictionary, \u201cIntimidation,\u201d \u201cIntimidate.\u201d The words \u201cintimidation,\u201d \u201cthreats\u201d were used in the statute synonymously.\nThe use of the disjunctive \u201cor\u201d between the words \u201cintimidation\u201d and \u201cthreats\u201d in the statute was not in the sense of indicating that they are two different things, but was only used as an alias to designate the same thing by different words. The use of the words \u201cintimidation\u201d and \u201cthreats\u201d thus connected by the use 6f the word \u201cor\u201d only means one and the same thing. If the word \u201cor\u201d had been used in the sense of disconnecting the words \u201cforce,\u201d \u201cfraud,\u201d and \u201cintimidation,\u201d so as to indicate that the pandering was done in either one of these ways, then the indictment would have been uncertain, and hence defective. Thompson v. State, 37 Ark. 408.\n\u201cIn an offense created by the statute, it is generally sufficient to describe the offense in the words of the statute.\u201d See cases cited in 5 Encyclopedic Dig. of Ark. Reps., p. 645;\nIn Blais v. State, 94 Ark. 327, the indictment charged that the defendant \u201cdid forge a writing or paper.\u201d We held that the use of the word \u201cor\u201d in that connection did not describe the instrument alleged to have been forged in the alternative, since the words \u201cwriting\u201d and \u201cpaper\u201d clearly amounted to the same thing.\nThe indictment uses the words, \u201cand by the use of his position of confidence and authority.\u201d These words are found in the first section of the act, and are intended to describe the offense when a person occupying a position of confidence or authority uses such relation to take, place, harbor, inveigle,\u201d etc., any female to any place in the State in which prostitution is practiced. These words, \u201cand by the use of his position of confidence and authority,\u201d are clearly out of place in an indictment where the charge of pandering is other than that of placing a female in some house or prostitution. It is clear that the indictment was not intended to charge pandering by placing the female in a house of prostitution, or in any place where prostitution is practiced, the only charge being that he caused his wife, by the methods indicated, to lead a life of prostitution. But these words may be stricken from the indictment as surplusage. They are not a necessary part of the'description of the offense. We conclude therefore that the indictment, though artlessly drawn, is nevertheless sufficient to charge the offense under the second section of the act.\nThe testimony on behalf of the State tended to prove that the appellant asked certain men on the streets of Malvern, to go upstairs to a certain room, giving the number, at a certain hotel, stating to them that there was a woman there who wished to see them. He told one of the men to knock on her door. The witness knocked at the door, and the woman said, \u201cCome in.\u201d When he entered she told witness that he ought to get out to work; asked the witness if there were any men that he could send in to see her, stating that she would pay him for his work; that both the husband of the woman and the woman herself stated to the witness that they would pay him fifty cents each for the men whom witness might send to her. Witness went out on the streets and spoke to one man, who didn\u2019t care to go up. Another man said he would go up. Witness accompanied this man to the door of the woman\u2019s room between 10 and 11 o\u2019clock at night. The woman and appellant were in bed. Appellant told witness to take the man in another room and wait until appellant put his clothes on.\nAnother witness, who was night marshal of the town, stated that he met appellant on the street and appellant told him there was a woman upstairs, and asked the witness if he did not want to go up to her room. Witness went up to the room at night, with a negro whom he had arrested, and, on knocking at the door, appellant opened the door and said, \u201ctake them in the other room. \u201d Appellant was in bed with a woman who he said was his wife. Witness got the marriage license out of appellant\u2019s pocket. When witness arrested appellant his wife never opened her mouth. She acted like she was scared to death. Witness stated that appellant seemed to control her in the justice court. When she was in his presence she seemed to be afraid of him, but when in his absence she would talk freely about the way he was doing her. Witness went back the next morning and arrested the woman about 10 o\u2019clock.\nOther witnesses testified to. the' effect that appellant asked them to meet the woman designated as appellant\u2019s wife at another place down in a certain pasture, and that they did so. One of them said that he took a stroll with the woman and had sexual intercourse with her. One of these witnesses stated that he was present at the examining trial, and after he was bound over the woman said to be his wife visited the jail in which he was confined; that when she was in appellant\u2019s presence, she was not natural \u2014 seemed to be intimidated. When she was out of his presence, she seemed natural. Appellant told witness that the woman was his wife.\n, On cross-examination, this witness stated that the woman was not forced to come to the jail to see appellant; that appellant was in jail handcuffed, and witness supposed that made his wife unnatural.\nThe town marshal testified that he was present at the examining trial and noticed the appearance of the woman. She would talk about the case when she was away from him, but would not talk much when she was near him. She seemed afraid of him when in his presence ; she seemed intimidated by him and was afraid to talk.\nAnother witness testified that \u201cshe hesitated to give testimony against, him; seemed like she was intimidated;\u201d that appellant\u2019s expressions were pretty scornful.\nThe testimony of the woman was to the effect that she was the wife of the appellant; that she was in bed with her husband at the time the man knocked on the door. She stated that she had been keeping up the practice of having sexual intercourse with men for the last five months; that she charged from three to five dollars each; that her husband, for a while, did not know that she was receiving men, but that he had known it for the last three months. Stated that she was to pay the negro porter for bringing the men to her the sum of fifty cents.\nThe appellant himself testified that the woman that was with him in the hotel at Malvern was his wife; that he knew that his wife was crooked before he married her, but thought that she had reformed. He knew her about nine months before they were married; that he never induced his wife to lead a life of prostitution, but told her that if he ever heard of her doing anything like that he would leave her; that he never induced others to induce her to lead a life of prostitution.\nGiving the testimony its strongest probative force in favor of the State, it is wholly insufficient to sustain the charge in the indictment. The testimony of appellant and of the woman herself shows that the woman was a prostitute before appellant married her, and there is no testimony tending to prove that appellant, \u201cby force, fraud and intimidation,\u201d caused his wife to lead a life of prostitution. There is some proof tending to show that appellant sought to induce others to have intercourse with his wife, but this is not sufficient to show that by force, fraud, intimidation and threats he procured other persons to place or leave his wife in a house of prostitution or to lead a life of prostitution. There is an utter absence of evidence tending to show that the life of prostitution which the woman was leading was any other than voluntary upon her part. The proof as to the force, fraud and intimidation breaks down, and the instructions of the court, under this evidence, were abstract and erroneous. The court should have granted appellant\u2019s prayer for an instruction, telling the jury \u201cto find the defendant not guilty.\u201d\nThe judgment is therefore reversed and the cause is remanded for a new trial.\nHumphreys, J., not participating.", "type": "majority", "author": "Wood, J." } ], "attorneys": [ "E. H. Vance, Jr., for appellant.", "Wallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee; D. D. Glover, of counsel." ], "corrections": "", "head_matter": "Southwick v. State.\nOpinion delivered November 20, 1916.\n1. Pandering \u2014 nature op crime. \u2014 The crime of pandering as denounced in Act 105, Acts of 1913, is but one offense, which may be committed in the different ways enumerated in the Statute.\n2. Pandering \u2014 \u201cintimidation\u201d\u2014\u201cthreats.\u201d\u2014The words \u201cintimidation\u201d and \u201cthreats\u201d are used synomously in Act 105, Acts of 1913.\n3. Pandering \u2014 sufficiency of indictment. \u2014 The indictment, charging defendant with the crime of pandering, held sufficient to charge the offense under Sec. 2 of Act 105, Acts of 1913.\n4. Pandering \u2014 insufficiency of the evidence. \u2014 Defendant was charged with the crime of pandering, and that he by force, fraud and intimidation caused his wife to lead a life of prostitution. Held, the evidence was insufficient to sustain the charge. \u00ab\nAppeal from Hot Spring Circuit Court; W. H. Evans, Judge;\nreversed.\nE. H. Vance, Jr., for appellant.\n1. The indictment is bad and the demurrer should have been sustained. 110 Ark. 318; 111 Id. 214; 114 Id. 310.\n2. The testimony is insufficient to sustain a case of pandering.\n3. The instructions for the State were erroneous.\nWallace Davis, Attorney General, and Hamilton Moses, Assistant, for appellee; D. D. Glover, of counsel.\n1. While the time and place of some crimes must be alleged and proved the general rule is that neither need be done, provided only, that the felony must be alleged. 34 Ark. 321; 102 Id. 393; 92 Id. 413; 99 Id. 126. It is sufficient to follow the language used in the statute and the indictment only states one offense. Ill Ark. 214-217; 64 Id. 231; 70 Id. 290.\n2. The demurrer was properly overruled. The indictment is ^sufficient. Kirby\u2019s Digest, \u00a7\u00a7 2227-9; 111 Ark. 214-218. The instructions were correct." }, "file_name": "0188-01", "first_page_order": 212, "last_page_order": 217 }