The indictment in this case is founded upon the Act of March 1st, 1872 (Statutes 1871-2, p. 184), which Act, for the purposes of this сase, may be considered as identical with section two hundred and sixty-six of the Penal Code. The indictment alleges that the defendant willfully and feloniously, and by false pretenses and fraudulent representаtions did, on a day therein mentioned, inveigle and
The defendant interposed a dеmurrer, which, having been sustained by the Court below, and the prisoner discharged, this appeal is prosеcuted by the people. The grounds of the demurrer were: that it is not alleged in the indictment that the fеmale therein mentioned was of previous chaste character; that the facts stated do not state a public offense; and “that the complaint does not state facts sufficient to constitute a cause of action.”
1. To entice a female into a house of ill-fame, or elsewhere, for the purposes of prostitution, is not an offense under the two hundred and sixty-sixth section of the Penal Code, nor under the provisions of the Act of March 1st, 1872 (p. 380), unless such female was of previous chaste character. Character in this respect is a fact, and one which must be alleged in the indictment, and established by the prosecution, in order to a conviction of the acсused. It need not, however, be proven by evidence given directly upon the point, but may be shown prima facie, by presumption from other facts and circumstances attending the transaction; as, for instance, thаt the unmarried female—the subject of the injury—was at the time residing with her parents, or other relatives, оr her guardian, or in some respectable household, or by proof of other like circumstances consistent with, and the usual concomitants of, chaste female character. But by whatevеr evidence it may be proven in the case, the fact of previous chaste charaсter must be alleged in the indictment. It is not a presumption of mere law, to b'e indulged against the counter presumption of the innocence of the prisoner on trial upon a charge of crimе committed. We are of opinion, therefore, that
2. Nor do we think that it can be supported under the last clause of the Act referred to. The facts stated in the indictment in this respect (even assuming Carlotta Lopez to have been of previous chaste character), amount to a charge of seduсtion, and do not import a crime under that clause. To “procure a female to have illicit carnal connection with any man,” is the offense of a procurer or procuress—of a рander. This is the natural meaning of the words—the fair import of the terms of the statute—and, in our opinion, this construction effects the objects had in view by the law-makers in its enactment. The argument for the people is that, as a seducer is a person who prevails upon a female—theretofоre chaste—to have illicit carnal connection with himself, he is thereby brought within the mere words of the statute, and so made liable to the punishment it inflicts. But we think that this view cannot be maintained by any rule of fair interpretation. ' The statute uses the word procure—“ procures. ” The recognized meaning оf this word, in the connection in which it appears in the statute, refers to the act of a person “who procures the gratification of the passion of lewdness for another.” This is its distinctive significatiоn, as uniformly understood and applied. The subsequent words “with any man” (“procures any female to have illicit carnal connection with any man ”), therefore, so far from being inconsistent with this construction, lеnd it support.
It would be to utterly disregard the relations which these words bear to the remainder of the sеntence in which they occur, and to indulge in a most latitudinarian construction, should we hold that they includе and apply to the defendant in this case. He cannot, under the facts stated in the indictment, be considered to have been both procurer and seducer at the same time, and in one and thе same instance, without utterly confounding distinctions and definitions well established, and universally recognized.
Mr. Justice McKinstry did not express an opinion.