State v. Stoyell , 54 Me. 24 ( 1866 )

AppletoN, C. J.

The defendant is indicted for a violation of c. 4, § 1, of the Acts of 1861.

ByR. S., 1857, c. 124, § 6, "if an unmarried man commits fornication with an unmarried woman, they shall each be punished by imprisonment not more than sixty days and by fine not exceeding one hundred dollars.”

By c. 4, § 1, of the Acts of 1861, "whoever fraudulently and deceitfully entices or takes away an unmarried female from her father’s house, or wherever else she may be found, for the purpose of prostitution, at a house of ill-fame, assignation or elsewhere, and whoever aids and assists in such abduction or secretes such female for such purpose, shall be punished'by imprisonment in the state prison not less than one year nor more than ten years.”

These sections are for different purposes. They create different offences and impose different punishments. A person may be guilty of one offence and not of the other, lie may commit fornication with a female without intending to induce such female to become a prostitute. He may entice one away from her father’s house for the purpose of prostitution, he may induce her to become a prostitute without committing fornication'with her. Indeed, persons of either sex may entice away females for the purpose of supplying brothels and houses of ill-fame.

The offence set forth in the statute under which this indictment is found, is the fraudulently and deceitfully enticing away an unmarried female from her father’s house, or wherever she maybe found, for the purpose of prostitution, at a house of ill-fame, assignation or elsewhere, &c. Worcester defines prostitution thus, " to offer to a common, lewd use; to make a prostitute of; to corrupt. ' Do not prostitute thy daughter.’ Lev. xix. 29.” A prostitute is a female given to indiscriminate lewdness for gain. In its most general sense, prostitution is the setting one’s self to sale, or of devoting to infamous purposes what is in one’s power. In its more restricted sense, it is the practice of a female offering her body to an indiscriminate intercourse with men; the common iowduess of a female. Carpenter v. People, 8 Barb., 603. In Com. v. Cook, 12 Met., 93, a statute similar in its language and its object to that of this State now under consideration, received a judicial construction— and it was there held, that it did not apply to the case of a man’s enticing a woman to leave her place of abode for the sole purpose of illicit sexual intercourse with him.

It appears in proof that the defendant, by false representations, procured tbe complainant to go with him to Bath, and there, having induced partial intoxication, bad repeated sexual intercourse with her. Sexual intercourse, the evidence shows, was the whole object he had in view. Nothing indicates a design on his part to make her a common prostitute. His only purpose was sexual gratification. However infamous the conduct of the defendant — however deserving of punishment he may be, he cannot be legally convicted of, nor punished for a crime he has never committed. The evidence on the part of the government fails to sustain the allegations of this indictment, while it abundantly proves him guilty of another and different offence — that is, fornication.

The facts on the part of the government are uncontradict-ed. No further evidence is attainable. To send the cause to a jury would only delay its decision, without changing the result. By the agreement of parties the case stands as on a demurrer to the evidence — an obsolete form of procedure, though sometimes recognized, as in State v. Soper, 16 Maine, 293. Upon the facts as proved, the defendant cannot legally be convicted of the offence for which he is indicted, and the county attorney may very properly enter a nolle prosequi.

Kent, Walton, Dickerson and Danforth, JJ., concurred.