Opinion
Decided November 22, 1927.
Criminal law — Indictment — Several distinct offenses may be charged in different counts, when — Refusal to require prosecution to elect as to single charge, discretionary — Automobile maintained and operated for purposes of prostitution, when — Section 13031-13, et seq., General Code.
1. While the court may require the prosecution to elect on which charge to proceed, where indictment charges several offenses arising out of distinct and different transactions, its action in that respect is a matter of discretion, so that its refusal to require the election is not ground for writ of error.
2. Several distinct offenses may be charged in different counts of same indictment, where arising out of and connected with the same transaction or where connected by the same subject-matter.
3. Defendant maintained and operated a conveyance for purpose of prostitution in violation of Section 13031-13, General Code, in view of Section 13031-14, defining the term "prostitution" to include the receiving of the body for "indiscriminate" sexual intercourse without hire, where in his automobile on many occasions he so used the body of one woman only.
ERROR: Court of Appeals for Knox county.
Mr. L.C. Stillwell, for plaintiff in error.
Mr. Jay S. McDevitt, prosecuting attorney, for defendant in error.
The proceeding in the lower court was based on an indictment returned by the grand jury of Knox county against the plaintiff in error, the defendant below, Clayton Bates.
Said indictment reads as follows:
"The State of Ohio, Knox County — ss.:
"In the court of common pleas, Knox county, Ohio, of the term of January in the year of our Lord one thousand nine hundred and twenty-seven.
"The jurors of the grand jury of the county of Knox and state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their said oaths, in the name and by the authority of the state of Ohio, do find and present:
"That Clayton Bates, late of said county, on or about the first day of March in the year of our Lord one thousand nine hundred and twenty-six, at the county of Knox and state of Ohio aforesaid, did unlawfully maintain and operate a conveyance, to wit, an automobile for the purpose of prostitution.
"Second Count.
"That Clayton Bates late of said county on or about the fifteenth day of March in the year of our Lord one thousand nine hundred and twenty-six, at the county of Knox and state of Ohio, did unlawfully maintain and operate an automobile for the purpose of prostitution.
"Third Count.
"That Clayton Bates late of said county on or about the eighteenth day of September in the year of our Lord one thousand nine hundred and twenty-six, at the county of Knox and state of Ohio, did unlawfully maintain and operate an automobile for the purpose of prostitution."
The indictment was returned under favor of Sections 13031-13, 13031-14, 13031-15, 13031-16, and 13031-17, of the General Code of Ohio.
The jury returned a verdict of guilty against the accused on all three of the counts in the indictment; and the trial judge sentenced Bates — as of the second degree — to nine months imprisonment in the Ohio Penitentiary.
After the state had offered its evidence and rested, counsel for the defendant requested the court to have the jury retire from the courtroom, which was done.
On pages 71, 72, and 73 of the record the following appears:
"Mr. Stillwell: Miss Jones, I wish you would take this. First, in this case the defendant is indicted for three separate offenses, and I now ask that the state be compelled and required to elect upon which of these counts they rely for conviction.
"The Court: Motion overruled. (Exception.)
"Mr. Stillwell: Exception. And I now ask the court to arrest this case from the jury and discharge the defendant, and I make that motion based upon the ground that he stands indicted for the offense of operating an automobile for the purposes of prostitution. Now, as the court is aware of the fact, this is a new statute entirely, and he is indicted under the provisions of Section 13031-13. That act was just passed some time in 1919, and it provides * * *. Now he stands indicted for operating an automobile for the purposes of prostitution, and the act provides that `from and after the passage of this act it shall be unlawful to keep, set up, maintain or operate any place, structure, building or conveyance,' etc. Now he is charged with unlawfully operating an automobile for the purposes of prostitution, and now the term `prostitution' is defined by the act itself, under Section 13031-14, which provides (reading), `Terms "prostitution," "lewdness" and "assignation" defined. The term "prostitution" shall be construed to include the offering or receiving of the body for sexual intercourse for hire.' Now of course that is not charged in this case and there is no such evidence at all. Now the other phase of the case (reading), `and shall also be construed to include the offering and receiving of the body for indiscriminate sexual intercourse without hire' — now there are two offenses in operating an automobile under that statute, the first for hire and the second for indiscriminate sexual intercourse without hire. Now if this charge falls within either, it is the latter — the operating of an automobile for purposes of prostitution without hire; that is to say, as a limitation to the meaning, the Legislature seems to have placed a construction upon this statute, and I don't believe the prosecutor has been able to find any adjudicated cases under this statute. I have not, either in this or other states. So whatever the court does on this will be a sort of a blazed trail. It will be blazing the way, etc.
"The Court: We will overrule the motion and let it go to the jury.
"Mr. Stillwell: An exception. (Exception.)
"(Jury returned into court.)
"Mr. Stillwell: Your honor, I am not going to offer any proof, but rest on the legal question. I now renew my motion, at the close of all the testimony, to arrest the case from the jury and discharge the defendant.
"Overruled. (Exception.)
"And this was all the testimony and evidence offered in the trial of this case."
It will be observed that the accused did not testify, and he offered no evidence in his defense. Therefore all of the proper, competent, and legal evidence presented in the trial by the state stood uncontradicted and undisputed.
Counsel for plaintiff in error relies upon two grounds for a reversal of the judgment of conviction against his client:
(1) That the trial judge committed prejudicial error, after the state had rested its case, in not sustaining the motion to require the state to elect upon which count in the indictment it would rely for a conviction.
(2) That the evidence in the case, in the light of the construction placed by counsel for plaintiff in error on the statute under which the accused was indicted and convicted, is insufficient to warrant a conviction.
After a most careful examination of the record in this case, we are convinced that there is no substance to these claimed errors if a proper, correct, and true interpretation be placed upon the statute under favor of which this indictment was drawn.
The indictment, in each and all of the counts, avers that the accused, on or about the time stated therein, "did unlawfully maintain and operate a conveyance, to wit an automobile for the purpose of prostitution."
Section 13031-16, General Code of Ohio, reads:
"Whoever shall be found to have committed two or more violations of any of the provisions of Section 13031-13 of the General Code within a period of one year next preceding the date named in an indictment, information or charge of violating any of the provisions of Section 13031-13 of the General Code, shall be deemed guilty in the first degree. Whoever shall be found to have committed a single violation of any of the provisions of this act shall be deemed guilty in the second degree."
Not only did the testimony of Catherine Veatch, the prosecuting witness, show that the crime had been committed on the dates named in the indictment, but it also showed that the said Catherine Veatch had had sexual intercourse with Clayton Bates on many other occasions prior to the dates named in the indictment, all of which dates were within a period of one year next preceding the date named in the indictment. To corroborate the testimony of Catherine Veatch, whose testimony was not denied by the defendant below, a number of other witnesses testified as to having seen the said Clayton Bates leave in his automobile in company with Catherine Veatch. In addition to that, in a letter which was introduced by the state, and marked "Exhibit A," the defendant admits such sexual intercourse on one of the dates alleged in the indictment.
In this jurisdiction the rule seems to be well fixed as follows:
"Where an indictment charges two or more offenses, arising out of distinct and different transactions, the court trying the cause, may require the prosecutor to elect upon which charge he will proceed; but the action of the court, in this respect, being a matter of discretion, can furnish no ground for a writ of error.
"Several distinct offenses may be joined in different counts of the same indictment, as a general rule, either where they arise out of, and are connected with, the same transaction, or where they are connected by the same subject-matter." Bailey v. State of Ohio, 4 Ohio St. 440.
The policy of our courts seems to be to permit a somewhat wide discretion in the matter of requiring election, by the state, between different counts in an indictment.
Learned counsel for Bates has cited and relied upon the case of Bainbridge v. State, 30 Ohio St. 264. We have examined this decision, and in our judgment it has no application to the instant case, because the question determined in the cited case arose from an indictment containing only one count, and the evidence seemed to indicate or point to two or more offenses.
The second claimed error is raised by counsel for Bates on the refusal of the trial judge to charge the jury as follows:
"Before you can return a verdict finding the defendant guilty, you must find that he operated this conveyance or automobile and had sexual relations with some other person other than the prosecuting witness, Catherine Veatch."
The trial judge, in substance, charged the jury as follows:
"Section 13031-14, General Code, reads: `The term "prostitution" shall be construed to include the offering or receiving of the body for sexual intercourse for hire, and, shall also be construed to include the offering or receiving of the body for indiscriminate sexual intercourse without hire.'"
It is urged by counsel for plaintiff in error that the word "indiscriminate" as used in the statute means that the defendant below could not be found guilty under this statute as the proof did not show that he had had such relations indiscriminately with other persons other than the prosecuting witness, Catherine Veatch. If that be the correct interpretation of the language used in this statute, it would make the provisions thereof meaningless and thereby thwart the intent and purpose of the lawmaking body that enacted it. In other words, it would defeat and set aside the operation of these statutory provisions, which define the crime and fix its punishment for operating a conveyance, etc., for the purpose of prostitution.
The only question here is the legal force and effect of the word "indiscriminate." The leading dictionaries define the word "indiscriminate" as follows: "Showing no discrimination"; "undistinguishing"; "not choosing carefully," etc.
Courts in construing statutes must give effect to the intent of the lawmaking body, and seek for that intent in every legitimate way. The language of a statute is its most natural expositor; and, when the language and the words therein are susceptible of a sensible interpretation, they are not to be controlled by any extraneous considerations.
The words and language of a statute are to be construed with reference to their manifest object.
Therefore, if the words and language are susceptible of two constructions, one which will carry out and the other defeat such manifest object and purpose, they should receive the former construction.
The conceded fact is, and it stands undenied and unchallenged by the accused or any other person or persons, that Bates on many occasions, in his automobile, at and near the times alleged in the indictment, used the body of the prosecuting witness for sexual intercourse without hire; and we find and hold under the statutes of Ohio, the record facts, and the rules of law herein laid down, that such was and is a criminal act and in violation of the provisions of the General Code of Ohio as herein cited.
It clearly appears from a reading of the record that the plaintiff in error was ably defended by counsel, that the trial judge guarded with care, in the admission and exclusion of evidence, and in his charge to the jury, every legal right of the accused, and that he had a fair and impartial trial. Hence we find the conviction responsive to the facts and law, and that the jury did only its legal duty when it returned a verdict of guilty. Further comment appears to be unnecessary except to say that those who violate our criminal statutes must and should atone to the offended law.
Judgment affirmed.
SHIELDS and LEMERT, JJ., concur.