What offense was charged in the indictment in this case? It is the state's assertion that the indictment is drawn under and alleges a violation of R. C. 2905.18 which section provides, omitting the penalty, the following:
"No person shall receive any money or other valuable thing for procuring for, or placing in, a house of prostitution or elsewhere, any female for the purpose of causing her to cohabit with any male person."
R. C. 2905.18 was formerly G. C. 13031-3, which provided, again omitting the penalty, the following:
"Any person who shall receive any money or other valuable thing for, or on account of, procuring for, or placing in, a house of prostitution or elsewhere, any female for the purpose of causing her to cohabit with any male person or persons, shall be guilty of a felony * * *."
The legislature has provided by R. C. 1.24 that it was not intended by adoption of the provisions of the Revised Code to change the law as heretofore expressed in the General Code, hence, reference to the former section is proper. See State v.Kotapish, 171 Ohio St. 349.
In the leading and oft cited case of Boykin v. United States (D.C. Cir.), 130 F.2d 416, the United States Court of Appeals for the District of Columbia carefully and logically analysed an enactment of Congress which was, except for the omission of commas and the difference in the penalty, identical with G. C. 13031-3.
The indictment in Boykin charged (in two counts upon which the defendant was convicted) defendant with the receiving of money on account of a "placing" by the defendant of his daughter to cohabit with divers male persons. The pivotal question was whether the gist of the offense was the "placing" or receiving of money. The court held that since there was only one placement, there was only one violation irrespective of how many times money was received.
In its analysis of the statute, the court concluded at page 419 that the following elements were necessary to be charged and proven for a conviction: "(1) an act of procurring a woman for or placing her; (2) in a house of prostitution *Page 58 or elsewhere; (3) for the purpose of causing her to cohabit illegally with a male person or persons; (4) that the defendant received money or other valuable thing; (5) for or on account of the procuring or placing."
The court, on the same page, further stated in analysing the statute:
"The central fact in the statutory structure is, therefore, the act of placing or procuring a woman for the purpose prohibited. Without this, the section does not proscribe the taking of money for causing or aiding to cause illegal cohabitation. It does not punish merely procuring patrons for a woman, or sharing her "earnings," or "keeping" or "maintaining" her, even with intent to cause her to cohabit illegally. In other words, it does not penalize brothel keepers as such, or agents who procure patrons for brothels or for women who carry on "the oldest profession" elsewhere, so long as they do nothing toward bringing the woman there, for that purpose, and for money or value received. The essential evil is procuring women for houses of prostitution and for similar purposes elsewhere for pay."
Did the indictment herein charge an offense in light of the above principle? The indictment returned against the defendant provides, with omission of the strictly formal parts, the following:
"John Stone * * * on the 13th day of February in the Year of our Lord one thousand nine hundred and sixty-nine, at the County of Ross aforesaid, did unlawfully receive money or other valuable thing for procuring for any female, to-wit: Patricia Larkin, for the purpose of causing her to cohabit with any male person."
Giving the indictment a reasonable interpretation, it appears to charge the appellant with the offense of receiving money or other valuable thing for procuring for Patricia Larkin male persons for the purpose of causing her to illicitly cohabit with such persons. If this is in fact what the indictment charges, regardless of what was intended, it does not allege a violation under the statute. Procuring of customers for a prostitute is not proscribed by the statute.
The defendant has not assigned the sufficiency of the *Page 59 indictment as error, however, this court possesses authority to consider any error it finds even though not assigned by counsel. It is unnecessary, however, to determine if the indictment is fatally defective in that it fails to charge an offense for the reason that, in my view, the case must be reversed under the fifth assignment of error.
The fifth assignment of error is as follows:
"The Court erred in its charge to the jury by instructing the jury on issues not raised by the indictment."
My colleagues conclude that any error in the charge was waived. The record reflects no objection entered or exception taken to the charge. The correctness of this conclusion is dependent upon whether the alleged error was one of omission or commission.
R. C. 2321.03 provides, in part:
"Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge."
The principle was applied in State v. Lynn, 5 Ohio St.2d 106, the fourth paragraph of the syllabus providing:
"Where there are errors of commission in the charge of a court, not induced by the complaining party, a failure to object thereto does not constitute a waiver of the error and such error may be relied upon in an appeal of such case. (Rosenberry etal., Admrs., v. Chumney, 171 Ohio St. 48, followed.)"
The decisive question, therefore, under this assignment of error, is whether there were errors of commission, prejudicial in nature, in the charge in the court below. My conclusion is in the affirmative.
An examination of R. C. 2905.18 reveals that the conduct proscribed is in the disjunctive. The statute may be violated by receiving money for procuring for a house of prostitution or elsewhere any female for illicit cohabitation with a male person, or the statute may be violated by receiving money forplacing in a house of prostitution or elsewhere any female for illicit cohabitation with a male person. The indictment here, assuming it charges an offense, is for procuring and does not allege a "placing" violation. *Page 60
The Court in its charge, in an early portion, read the indictment. Subsequently, the following was given.
"Now the indictment in this case is founded on Section2905.18 of the Revised Code. This Revised Code reads as follows: "No person shall receive any money or other valuable thing for procuring for, or placing in, a house of prostitution or elsewhere, any female for the purpose of causing her to cohabit with any male person.
"Now the indictment charges the defendant with procuring and in the event of procuring, there are several material elements of the crime which the States must prove beyond a reasonable doubt before it is entitled to a conviction.
"* * *.
"Three, the State must prove beyond a reasonable doubt that the defendant, John Stone, placed the said Patricia Larkin in a motel, specifically the Holiday Inn located in Chillicothe, Ohio.
"Four, the State must prove beyond a reasonable doubt that the defendant, John Stone, placed the said Patricia Larkin in the Holiday Inn Motel for the purpose of causing her to cohabit with one or more male persons.
"Five, the State must prove beyond a reasonable doubt that the defendant, John Stone, received money or other valuable thing, for or on account, of placing the said Patricia Larkin in the Holiday Inn Motel.
"In furthering expiration of the offense charged in the indictment, there must be established the act of placing the said Patricia Larkin in the Holiday Inn Motel by the defendant, and it must further be established that the defendant placed the said Patricia Larkin in the motel for the purpose of causing Patricia Larkin to cohabit with one or more male persons. * * *."
It is evident that the court submitted the case to the jury upon a manner of commission of the offense, to-wit, "placing" provided for in the statute but not upon the manner, to-wit, "procuring" which the prosecution alleged in the indictment.
The section heading of R. C. 2905.18 is "Procuring." I am not persuaded, however, that it can with logic, be argued *Page 61 that such heading may be used as a definition of the offense and that use of the term "procuring for" in the indictment charged both a "procuring for" and a "placing in." The reason is that, by virtue of R. C. 1.01, section headings do not consitute any part of the law as contained in the Revised Code.
The charge here could be proper only if the legislature intended the term "procure for" to be identical in meaning to "place in." In construing statutes, the Ohio Supreme Court inTurley v. Turley, 11 Ohio St. 173 at 179 stated:
"The presumption always is, that every word in a statute is designed to have some effect, and hence the rule that, "in putting a construction upon any statute, every part shall be regarded, and it shall be so expounded, if practicable, as to give some effect to every part of it."
If the legislature intended the same meaning, what purpose was there in the inclusion of both terms in the statute? In my view, the terms do not have the same meaning in ordinary significance or legal usage.
The term "procure" has been defined as meaning: "assisting, inducing, persuading or encouraging a female person to become an inmate of a house of prostitution." People v. Schultz, 238 Cal.App.2d 804,48 Cal. Rep. 328. An Ohio court has defined "procure" to mean "to obtain for illicit intercourse or prostitution." State v. Miller, 88 Ohio Law Abs. 533, 537.
In State v. Basden, 31 Wn.2d 63, 196 P.2d 308, the following definitions were adopted, at page 73, with respect to the "placing" of a female in a house of prostitution:
"Webster's New International Dictionary (2d ed.), defines the verb "place" as follows:
"To put or set in a particular rank, office, position, or condition of life; to secure a position, office, or the like, for; as, in whatever sphere one is placed."
The Oxford English Dictionary (1933) contains several definitions of the verb "place." Under 2b is found the following:
"To find a place or situation for; to arrange for the employment, living, or marriage of; to settle * * *." *Page 62
Used in connection with a human being, these definitions are clearly comprehensive and adequate."
In Bandy v. State, 102 Ohio St. 384, the following is stated at 386 and 387:
"The charge of the court to the jury should naturally and necessarily include a simple and orderly statement of the issues of fact and the rules of law applicable thereto and helpful to the jury in the determination of those several issues of fact, upon which their verdict is to be based.
But, what are the issues of fact with which the jury are to deal in the case at bar, and from whence do they arise?
In civil cases, the issues of fact tried by the jury arise out of the pleadings. This is a sound and salutary rule.
The principle is that all parties in such cases should be advised in advance as to the issues thereof, and that, thereafter, unless amended, the evidence must be confined to the issues so raised.
But, in criminal cases, the rule is naturally and necessarily different from that in civil cases.
The indictment, information, or affidavit in a criminal prosecution, necessarily confines the state to the charge made against the defendant, in order that the defendant shall know, as the constitution provides, the nature of the accusation against him."
Hence, an accused in a criminal case is entitled to a charge which correctly separates and defines the issues under the indictment as drawn and any other issues that a jury must consider and give proper instructions in regard to each. See 4 Ohio Jurisprudence 2d 236, Appellate Review, Section 981.
The accused here did not receive such a charge and was prejudiced thereby.
The defect in the charge here was not one simply of omission with the charge being correct so far as it went. It required jury consideration of non-existent issues to determine guilt while omitting any finding upon the necessary issue of procuring. Nowhere in the charge is the requirement of a jury finding of "procuring" set forth or a definition of the same given.
I would reverse. *Page 63