Opinion
35718.
DECIDED JULY 15, 1955.
Soliciting for prostitution; certiorari. Before Judge Andrews. Fulton Superior Court. April 7, 1955.
James H. Dodgen, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, J. E. Thrift, Charlie O. Murphy, contra.
Under the evidence in this case it appears that a police officer and not the defendant was the person who initiated and carried out the transaction resulting in the defendant evidencing her willingness to have sexual relations with him. Accordingly, the evidence is insufficient to warrant conviction of the defendant on the charge of soliciting for purposes of prostitution.
DECIDED JULY 15, 1955.
The defendant was tried and convicted in the Criminal Court of Fulton County under an accusation charging that she did "solicit another for the purposes of prostitution, with knowledge and good reason to know of the immoral purpose of such direction, for the purpose of lewdness." Upon the trial of the case the evidence, in substance, was to the effect that an officer of the City of Atlanta vice squad engaged a hotel room in Atlanta and telephoned the defendant at least twice in an effort to get her to come to his room; that she was a married woman; that he induced her to come by telling her that he was a friend of a friend of hers, which was false; that she came to the room but informed him she had not come to fill a date but to get acquainted; that he told her she had nothing to fear as he didn't want the police to catch him in the room with a woman; that they had a considerable conversation, after which she said, "Well, I am ready for a date now"; the officer said, "What is your price?" and she named a price, whereupon he arrested her. The defendant in her statement denied this part of the transaction, and stated she went to the hotel room because the officer represented that he and a friend of hers were there and wanted to take her to dinner. The defendant was convicted. Her petition for certiorari was overruled by the Judge of the Superior Court of Fulton County, and this judgment is assigned as error.
The accusation here is based on Code § 26-6201 which provides as follows: "Whoever shall solicit another for the purpose of prostitution . . . shall be guilty of a misdemeanor." It is obvious from this Code section that for a crime to be committed thereunder at least two persons must be involved, one person to solicit another for purposes of prostitution either in his own behalf or in behalf of another, and a person to whom the solicitation is directed, and who may or may not accept the same. In this case the conduct of the officer, taking into account the place of meeting chosen by him, his repeated attempts to obtain her presence there, and his entire conversation and conduct, was such as to constitute him the person doing the soliciting, or a part of the soliciting, rather than the person receiving the solicitation. He initiated the entire transaction at a place and under circumstances where an act of prostitution might reasonably result. Under these circumstances, the defendant was justified in interpreting the words and conduct as an invitation, and her conduct amounted merely to an acceptance thereof. Therefore, the defendant was not the person who "originated the intention to commit the crime or induced its perpetration," and her conviction is not supported by evidence. Dalton v. State, 113 Ga. 1037 ( 39 S.E. 468).
The judge of the superior court erred in overruling and dismissing the certiorari.
Judgment reversed. Felton, C. J., Townsend, Carlisle, Quillian and Nichols, JJ., concur.