State v. Clark , 102 Idaho 693 ( 1981 )

SHEPARD, Justice.

This is an appeal from a felony conviction for a violation of I.C. § 18-5606, which prohibits the receipt of earnings of a prostitute. We affirm.

Defendant-appellant Clark operated a “dating service” in Boise which was advertised in local newspapers. Admittedly, the business was merely a front for the procurement of prostitutes. When a customer would call Clark’s business, he would dispatch one of his escorts-prostitutes. The charge for the service was fifty dollars, of which Clark was to receive twenty-five dollars, plus one-half of any tips received. Clark admitted knowing that his customers were looking for sexual encounters and also admitted knowing that the “escorts” were prostitutes.

In December, 1979, in response to a telephone call Clark dispatched a prostitute who was apprehended by the police during her sexual encounter. She agreed to cooperate with the police and turned over twenty-five dollars of her earnings to Clark. He was charged, tried and convicted of accepting the earnings of a prostitute.

At the time of Clark’s conviction, I.C. § 18-5606 prohibited the knowing receipt “without consideration” of the earnings of a woman engaged in prostitution. [The consideration requirement has been eliminated by 1981 Idaho Sess.Laws, Ch. 324, p. 674-75]. The jury was instructed that the statutory proscription encompassed only those transactions lacking in consideration, and appellant makes no assertion of error regarding those instructions. The sole issue here is whether, under the admitted facts, Clark’s knowing acceptance of the earnings of a prostitute was with “consideration”.

It is Clark’s principal contention that, although he knowingly accepted the earnings of a prostitute, he nevertheless did so as a payment for the services he had rendered to the prostitute. He argues that the uncontroverted evidence indicates that he maintained an advertised place of business equipped with a telephone where the prostitutes could wait for and be dispatched to customers for their service. He also asserts that he maintained files on customers, some of whom were screened, designated undesirable, and not accepted as customers. He also was to provide any legal defense that might be required. Clark maintains that such services constituted “consideration” for his knowing receipt of earnings of a prostitute. We disagree.

While the services provided by Clark may be deemed “consideration” in the broadest sense of the term, in a legal context it is clear that that which is claimed as consideration cannot be given in violation of law or public policy because that which violates law or public policy is no consideration at all. Williston on Contracts, § 101 (3d ed. 1957). Clark’s avowed and admitted business purpose was to procure prostitutes for his customers. Procurement for prostitution is forbidden by I.C. § 18-5602, and receiving pay for such procurement is forbidden by I.C. § 18-5603. Hence we hold that the term “consideration” as used in I.C. § 18-5606 is not intended to include therein services which are intended to keep a woman in the business of prostitution and which are proscribed as felonious procurement by our legislature. Appellant lastly suggests that some significance should be attached to the fact that our legislature used the term “consideration” as contrasted with the use of the term “lawful consideration”. E.g., Ill.Ann.Stat. Ch. 38, § 11-19, (Smith-Hurd). Again we disagree. Those courts which have construed the term “without consideration” in a similar context have concluded that it refers to those situations where the claimed consideration is not part of illegal conduct in placing or maintaining a woman as a prostitute. People v. Hill, 32 Mich. App. 404, 188 N.W.2d 896 (1971); State v. Harris, 396 S.W.2d 585 (Mo.1965); see also: People v. Brown, 36 Mich.App. 187, 193 N.W.2d 426 (1971); State v. Collins, 599 S.W.2d 253 (Mo.App.1980); People v. Fegelli, 163 A.D. 576, 148 N.Y.S. 979 (1914).

The conviction is affirmed.

BAKES, C. J., and McFADDEN and DONALDSON, JJ., concur.