Commonwealth v. Bowser , 1915 Pa. Super. LEXIS 276 ( 1915 )

Opinion by

Orlady,

The provisions of the Act of June 11, 1879, P. L. 142, entitled “An act to-protect children from neglect and cruelty, and relating to their employment, protection, and adoption,” are radically enlarged by the supplementary Act of May 28, 1885, P. L. 27, under which this defendant was tried and convicted.

This change is effected by clear and easily understood words, and so far as this defendant is concerned, it means that it was unlawful for him to take a female child, under the age of sixteen years, either for the purpose of prostitution, as that word is defined in our decisions, or for individual sexual intercourse, or to enveigle or entice any such female Child into a house of ill-fame, or assignation, or elsewhere for the same purpose.

To hold otherwise, would be to take from the evident legislative intent, a very material feature of its primary purpose.

The question was raised by the defendant’s second point, viz: “The learned court is respectfully requested to instruct the jury as to what constitutes the house or place into which the female must be enticed or inveigled, under the second count of the indictment,” which was answered as follows, in the general charge: “If he entices her to go to a house of prostitution, assignation or elsewhere for the purpose of sexual intercourse, he is guilty. There is no particular plan of a house used for the purpose of prostitution or assignation: any house may be used for such a purpose. Any place may be used for such a purpose, providing it is a convenient place for such a purpose. So, anyone who entices a child to go to a house of prostitution, or assignation or elsewhere for the purpose of sexual intercourse is guilty under this statute, whether the “elsewhere” be back of a wax house, on a side hill, in the woods, or any place that is convenient for that purpose, or any place such as persons desiring to commit that offense would naturally resort to.”

The prohibition is directed against having sexual intercourse with a female child under the age of sixteen years; the place where the act is committed is not material under this statute, and in the very words of the statute the unlawful act may be committed “in a house of ill-fame or assignation or elsewhere.”

The word “elsewhere” is significant, and is more comprehensive in meaning than the specially designated places preceding it. It is to be interpreted in its plain and dictionary sense — in another place, or in other places, somewhere or anywhere else, — than in a house of ill-fame or assignation. The ultimate design of the Act of 1885 was to safeguard female minors, under the age of sixteen years, from the baneful effects of, either indiscriminate prostitution, or of individual sexual intercourse, as the distinction between these terms is explained in Com. v. Lavery, 247 Pa. 139.

Every statute should be construed so as to vitalize, and not annul its prohibitions and mandates.

The cases relied on by the appellant, Butler’s App., 73 Pa. 448; Pardee’s App., 100 Pa. 408; Bucher v. Com., 103 Pa. 528, do not control in this one, as the legislative intent is made free from any uncertainty on the subject by the addition of the words “elsewhere” and “sexual intercourse” to the requirements of the earlier enactment.

Nor is it material to investigate the reputation of the child for chastity.

The protection is intended for chaste and unchaste. If she be chaste that she may continue a virgin, if she be unchaste, that she may not be further encouraged in her lawless course of living, and the evidence offered on this phase of the case was rightly rejected.

The other assignments of error were not pressed at. the agreement, and are fully covered in this opinion. All are overruled, and the judgment is affirmed. The record is remitted to the Court of Quarter Sessions of Venango County, with direction that the judgment there entered he fully carried into effect, and, to that end, that the defendant forthwith appear in that court, and that he be by that court committed to comply with such part of the sentence as had not been served and complied with at the time this appeal was made a supersedeas.

Kephart and Trexler, JJ., dissent. See page 214.