169 P. 42 | Mont. | 1917
delivered the opinion of the court.
The defendant was prosecuted for a violation of certain provisions of Chapter 1, Laws of 1911, was convicted, sentenced to imprisonment in the penitentiary for not less than fifteen years, nor more than twenty years, and has appealed from the judgment and from an order denying his motion for a new trial.
1. The charging part of the information follows: “That the said Gust Kanakaris, then and there being, then and there, a male person, willfully, wrongfully, unlawfully and feloniously did live with and in whole and in part upon the earnings'of, and money supplied by one Ollie Nunley, she, the said Ollie Nunley, being then and there a common prostitute and woman of bad repute, and he, the said Gust Kanakaris, did, then and there, knowingly, willfully, wrongfully, unlawfully and feloniously accept, receive, levy and appropriate money, without consideration, from the proceeds and earnings of the said Ollie Nunley, while so engaged in prostitution.” That this informa
Chapter 1 above consists of twelve sections. Sections 10 and 11 are the repealing clauses, and section 12 prescribes when the Act shall take effect. Each of the first nine sections defines a separate and distinct offense and provides the punishment therefor. Section 8 brands as a felon everyone, whether male or female, who knowingly and without consideration takes or receives from a woman engaged in prostitution any of the earnings of her shame. This section was designed to prevent the levy of tribute upon the occupation of women of the underworld or the gratuitous receipt of any of the proceeds of their prostitution, knowing it to be such, by the imposition of fine or imprisonment, or both fine and imprisonment, for a violation of its provisions. By enacting section 9, the legislature evinced a purpose to drive out of this state every vagabond, pimp and secretary who lives with a common prostitute or who depends for his living, in whole or in part, upon money supplied by a fallen woman, whether that money be earned in legitimate business or derived from her unlawful ocoupation. The punishment was adjusted to effectuate the purpose, for every violation of the section subjects the offender to imprisonment in the penitentiary without the alternative privilege of paying a fine and remaining at large. (State v. Jones, 51 Mont. 390, 153 Pac. 282.)
The most cursory reading of the information discloses that
2. The verdict returned declared the defendant “guilty of the
3. The evidence tends to prove that the defendant, who was proprietor of a rooming-house, induced a woman employed by him as chambermaid to engage in prostitution and to divide with him the proceeds of her illicit practices, and it goes no further. On the contrary, the evidence is not in dispute that defendant never lived with the woman, and, so far as it tends to any conclusion upon the subject, it establishes that he had independent means and was not dependent for his living, in any degree, upon the money furnished by the prostitute.
4. The record presents this singular situation: The defendant was charged with two distinct offenses; the evidence tends to prove him guilty of one only, while the jury found him guilty of the other one. It is elementary that, if the evidence does not prove the commission of the crime of which the defendant is convicted, it is insufficient to sustain the verdict, even though it tends to prove another and independent offense.
5. During the examination of witnesses for the state, the
6. Upon the cross-examination of the defendant he was asked many questions by the county attorney, the purpose of which
7. To the witness Schultze the county attorney propounded
8. Complaint is made of instruction No. 3 given by the court.
9. As this cause must be remanded for a new trial, attention
The judgment and order are reversed and the cause is remanded for a new trial.
Reversed and remanded.