Lee v. State

169 S.W. 963, 114 Ark. 310, 1914 Ark. LEXIS 612

• Court: Supreme Court of Arkansas
• Decided: October 5, 1914
• Status: Published

Opinion

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.