Lee v. State, 114 Ark. 310 (1914)

Oct. 5, 1914 · Arkansas Supreme Court

114 Ark. 310

Lee v. State.

Opinion delivered October 5, 1914.

Criminal law — pandering—indictment—proof—variance.—In a prosecution for the crime of pandering, the indictment alleged that the female was brought to the home of L., “said home then and there being situated on Lake Street, in the city of * * *” held, the

description of the house and street was descriptive of the offense, and must be proved as charged, and a judgment on a verdict of guilty, will be reversed, when the proof showed the house to have been situated on a street other than Lake Street.

Appeal from Greene Circuit Court; W. J. Driver, Judge; reversed.

W. W. Bandy, for appellant.

The cause should be reversed because of a fatal variance between the allegation in the indictment as to the location of appellant’s house, and the proof thereof. The place or house of the appellant was descriptive of the offense, and should have been proved as alleged. 62 Ark 459; 63 Ark 312; 64 Ark 188; Id. 235.

Wm. L. Moose, Attorney General, and Jno. P. Streepey, Assistant, for appellee.

The act under which this prosecution is based does not make it material to show the particular place where the crime was committed, further than to prove that it occurred at some place in the State. Acts 1913, p. 407; 63 Ark. 312-314; Kirby’s Dig., § 2229.

Kirby, J.

Appellant was indicted ¡and convicted for a violation of what is known as the pandering act, for enticing Clarissa Grubbs, a female under the age of sixteen years, to become an inmate of an assignation place and engage in a life of prostitution, the indictment charging this place, towit:

" The home of her, the said Mrs. Lee, * * # said home then and there being situated on Lake Street, in the city of Paragould, Greene County, Arkansas, which said house was then and there a place where prostitution was practiced, encouraged and allowed,” etc.

The testimony is otherwise sufficient to show the commission of the -offense, /but it is claimed that there is a variance in the proof, the only testimony introduced showing that the home of Mrs. Lee, or her house, was situated, not on Lake Street, in the -city of Paragould, as -charged, but upon a short street in that vicinity, and the majority of the court -are -of the opinion that the contention shoul-d be sustained.

The offense charged in this indictment is one of a local character or nature, consisting of enticing a female under age to visit -or become -an inmate of a place where prostitution is practiced, or an assignation house, and the place was properly descriptive of the offense, it being necessary to allege a place. Bryant v. State, 62 Ark. 459; Jenks v. State, 63 Ark. 312; Adams v. State, 64 Ark. 188; Keoun v. State, 64 Ark. 231.

In Keoun v. State, supra, the court said: “Where -an indictment contains a necessary allegation, which can not be rejected, and the pleader makes it unnecessarily minute in the way of -description, the proof must -satisfy the -description as well -as the main part -of the indictment. ’ ’

A description of the house or place was descriptive of the offense, and, while the indictment would have been sufficient had it -charged only “her home in Paragould,” since the pleader charged specifically the location of the place upon a particular street, it -also became descriptive of the offense, and material, and shoul-d have been proved as charged.

The testimony, having failed to show the commission of the offense, by enticing '-the girl into the home situated on Lake Street, a-s alleged, did not sustain the charge of the indictment, and the variance is fatal.

The judgment is reversed, -.and the cause remanded for a new trial.