Eppison v. State , 82 Tex. Crim. 364 ( 1917 )

The opinion of the majority does not state or discuss some material questions raised. I think this should have been done, and shall proceed to do so. These questions are passed up by the majority opinion by merely saying: "The other assignments do not present error." I have studied the evidence carefully. It is much stronger against appellant than stated in the majority opinion, and some cogent evidence is omitted entirely. But it is useless now to give this testimony.

The offense is prescribed by section 1 of the Act of March 1, 1911, page 29, Vernon's Statutes, article 506a, as follows:

"Any person who shall procure or attempt to procure or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, or who, by promises, threats, violence or by any device or schemes, shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution, or shall procure a place as inmate in a house of prostitution for a female person, or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate, or any person who shall, by fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procure any female person to become or remain an inmate of a house of ill-fame, or to enter any place in which prostitution is encouraged or allowed in this State, or to come into this State or leave this State for the purpose of prostitution, or who shall procure any female person to become an inmate of a house of ill-fame within this State, or to come into this State or to leave this State for the purpose of prostitution, or who shall give or agree to receive or give any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill-fame within this State, or to come into this State or leave this State for the purpose of prostitution, shall be guilty of pandering, and, upon conviction for an offense under this Act, shall be deemed guilty of a felony and shall be punished by confinement in the penitentiary for any term of years, not less than five."

The indictment is in several different counts, neither of which is either directly or indirectly based on that part of the statute pertaining to bringing a female into or leaving the State for the purpose of prostitution. The court in his charge expressly excluded the submission of all other counts except the first, which was to the effect that appellant on or about December 2, 1916, in Bowie County, Texas, did then and there unlawfully by abuse of a position of confidence and authority, towit: as a husband, procure a female person, towit: Bertie Eppison, to enter a place there situate in which said place prostitution was then and there encouraged and allowed.

Appellant contends that said statute is in conflict with the Mann White Slave Act of Congress of June 25, 1910, because of the provisions in our statute prohibiting any person from procuring a female to go into another or leave this State for the purpose of prostitution, and cites Hoke v. United States, 227 U.S. 308, and State v. Harper, 48 Montana, 456.

This court has already expressly held against appellant on this point in Hewitt v. State, 74 Tex.Crim. Rep.. In that case the same cases and others were relied upon therein to establish the invalidity of our statute, but this court showed the distinction between our statute and the Mann White Slave Act and the Montana statute, and distinguished the Harper and Hoke cases, supra, showing that they were inapplicable to our statute. It is needless to discuss the question again.

Moreover, it is well established in both this court and the civil courts of this State as well as the courts of other States, that "When a penal law prohibits two or more acts, . . . one valid and constitutional and the other not, it may and will be held valid and constitutional, and can and will be enforced, as to that portion which is valid and constitutional. (Holly v. State, 14 Texas Crim. App., 506.)" Ex parte Kennedy, 23 Texas Crim. App., 77.

The rule is also clearly stated by our Supreme Court in Zwernemann v. Von Rosenberg, 76 Tex. 522, as follows: "The rule for the construction of statutes in partial conflict with the Constitution is, that if the portion repugnant to the fundamental law can be stricken out, and that which remains is complete in itself and ``capable of being executed in accordance with the legislative intent it must be sustained.' Ex parte Towles, 48 Tex. 412, quoting Cooley on Const. Lim., 178. If the unconstitutional provision be but incidental to the main purpose and be not essential to give effect to the statute, such part may be rejected, leaving the remainder to stand."

The Supreme Court again clearly states the rule in Railway Co. v. Mahaffey, 98 Tex. 392, as follows: "It is settled law and now a familiar rule, that where a statute contains an unconstitutional provision and another which, if standing by itself would be valid, the latter will be given effect, provided they are so clearly independent of each other that the court can say that the Legislature would have passed it, if the former had been omitted." This principle is also universally laid down as sound by the text-book writers, as follows:

"A statute may contain some such provisions, and yet the same Act, having received the sanction of all branches of the Legislature, and being in the form of law, may contain other useful and salutary provisions not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same Act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained." Cooley's Const. Lim., 215; 1 Lewis' Suth. Stat. Const., p. 583.

The rule is further correctly stated in 36 Cyc., 976, as follows: "It is elementary that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected," citing decisions from thirty-four States, the District of Columbia, and the United States courts decisions.

Another rule is as correctly stated in 8 Cyc., 787, as follows: "It is a firmly established principle of law that no one can be allowed to attack a statute as unconstitutional who has no interest in it, and is not affected by its provisions," citing the decisions of many courts and of the United States Supreme Court. Many authorities on this point could be cited.

There can be no sort of doubt but that the Legislature did not make, nor intend to make, the other unlawful acts prescribing this offense depend in any measure upon those which might be offenses by a person bringing the female from another to this State, nor taking her out of this State into another; and that the other Acts prescribing the offense undoubtedly would have been passed without reference to those depending on taking the female from this into another or from bringing her from another into this State.

The principles above announced are equally applicable where the law of any State undertakes to deal with interstate commerce as well as intrastate matters as held by many courts, and expressly by our Supreme Court. Allen v. Railroad Co., 100 Tex. 527; 36 Cyc., 983, and cases cited in note 58.

There can be no question as to the application of these principles to our pandering statute and to appellant herein. So that in no contingency can he be sustained in his contention as to the invalidity of our pandering statute if in any contingency any part of it could be held invalid or unconstitutional.

While the evidence was in conflict on some points, there is no question but that it was amply sufficient under the law to show appellant's guilt and sustain the verdict of the jury.

The court did not err in overruling appellant's application for a postponement or continuance on account of the absence of the witness Arnold. At most the allegations would show that the testimony of this witness was for no other purpose than to tend to impeach, if it did, the testimony of the State's principal witness, and that upon not a very important point. It has always been held by this court that a continuance will not be granted for this purpose. Sec. 324, 1 Branch's Ann. P.C., where a large number of the cases are collated. Besides no diligence was used to secure his attendance.

Section 3 of the pandering Act expressly makes the wife a competent witness against her husband in prosecutions thereunder. The court did not err in permitting her to testify.

Appellant complains of this remark by the trial judge in permitting the explanation by Mrs. Eppison: "I knew when you let down the bars you would have a long siege of it." He explains and qualifies appellant's bill as follows: "The defendant's attorney while Bertie Eppison was on the witness stand, asked her all about her past life, the witness desired to make some explanations as to her life. Defendant's attorney objected to her making any explanation. On cross-examination the district attorney told her to make the explanation she desired to make. Defendant's attorney objected. I overruled the objection because the defendant's attorney had asked her all about her past life that she would be entitled to make the explanation with reference to the matters inquired about by defendant's attorney. I had notified defendant's attorney if he went into her entire past life it would let down the bars and would result in an extended investigation on both sides." What he stated was not calculated to make the jury believe that the judge was convinced of the appellant's guilt. It was in no sense a comment on the weight of the testimony, and could not have affected the jury in any way in passing on the testimony. In this connection it will be stated what appellant complains in another bill. This other bill — 6 — shows this: "The State offered to prove by Bertie Eppison the story of her life and propounded this question: ``Go ahead, Bertie, and just tell the whole story from beginning to end.' To which the defendant objected; the objections being overruled, the witness stated in substance as follows:" Then follows with some of her testimony. Her testimony was her explanation of certain acts of her life which had been drawn out for the purpose of impeaching and reflecting upon her. The court explains that bill as follows: "The defendant's attorney on cross-examination of this girl went into the life of the witness minutely; at the time she desired to make an explanation this was refused by defendant's attorney. I permitted the district attorney to ask for these statements or explanations; I did so because the defendant's attorney had gone into these matters at great length and I permitted her to make her explanations." It is universally held that any witness has the right to explain from his standpoint any fact tending to create a distrust of his integrity or truthfulness. As the witness sought to make this explanation when appellant was interrogating her, and he refused to then permit her to do so, it was proper for the court to permit the district attorney upon redirect examination of her to have her then make such explanation. Sec. 94, 1 Branch's Ann. P.C.

The court committed no error in permitting the witnesses to testify that Lou Hagerman was a prostitute. This woman was shown to be a common prostitute, and it was into her room appellant took his wife, and in that and an adjoining room also attempted to force her to have sexual intercourse with another man.

The State not only proved positively by witnesses that said Lou Hagerman was a common prostitute, but also proved by witnesses that the Mecca Rooms, and also the Como Rooms, where appellant took and placed his wife, had the reputation of being houses of prostitution, or where prostitutes resorted or resided for the purpose of plying their vocation. The appellant thereupon introduced a witness who testified, in substance, that the reputation of said Mecca Rooms in the particulars mentioned was good. This witness after being crossed by the State, on redirect examination, appellant sought to have him testify that on one occasion a girl came to his place of business and told him that she had been put out of the Mecca Rooms because she had a date to meet a man up there. This testimony was hearsay. The court did not err in excluding it.

The only other matter of which appellant complains is the court's refusal to give his two special requested charges. Neither the charges nor the bills complaining of their refusal show that they were presented to the judge for his action before the argument began. On that account alone they would present no error; but the court states that one of them was not given because given in effect in his main charge, and this was true. The other was wholly inapplicable and should not have been given.

The record herein presents no reversible error. The judgment should have been affirmed, not reversed.