State of Arizona v. Hart

It appears from the bill of particulars that the defendant, on the evening or night of January 22, 1943, was a bellboy at a hotel in the City of Phoenix, and that Marta Bach was a guest of such hotel occupying room 218; that in response to her request for "a couple of dates" defendant arranged a meeting between her and a United States Army Lieutenant, who was also a guest at such hotel in room 220, and who also had asked the defendant "to furnish him with a woman"; that, under the arrangement, Marta Bach visited the lieutenant's room, for which the latter paid her $35 in money, a portion or all of which was obtained by having the defendant cash the lieutenant's check.

The statute which it is claimed the defendant violated, Section 43-4401, makes several acts pandering as (1) placing a female in the charge and custody of any other person for immoral purposes; (2) placing a female in a house of prostitution with the intent that she shall lead a life of prostitution; (3) compelling any female to reside with him, or with any other person, for immoral purposes or for prostitution; or, (4) compelling a female to lead a life of prostitution.

When the county attorney furnished the bill of particulars under Sections 44-712 and 44-713 the defendant moved that the information be quashed upon the ground that the particulars set out did not constitute the offense charged in the information, which motion was granted.

From such order the county attorney, on behalf of the state, has appealed. The state insists the information states an offense and I agree that it does, but does the bill of particulars offered in support thereof state facts constituting the offense alleged in the information. The statement in the majority opinion of the facts is correct except the last sentence which is a conclusion of the county attorney from the facts and is clearly erroneous.

If the facts shown by the bill of particulars do not constitute the offense alleged, it was the duty of the court, under section44-1005 (1) (e), to quash it. What do the facts show? I have already stated what the defendant did in facilitating their getting together. The question is, do the facts thus stated show that the defendant "placed" Marta Bach "in the charge or custody" of the army officer. In People v. Drake, 162 Cal. 248,121 P. 1006, a question similar to the one we have here was before the court. The court there said:

"By this definition, in order to constitute the offense, it is made imperative that the female in question shall have been `placed in custody' by the person charged. The use of the words `in custody' necessarily implies that she must be placed where she is detained or kept in the charge or control of another, in some sort of restraint so that she is not free to come and go or otherwise act as she pleases. . . ."

As used in the California statute, Pen. Code § 266d, "placed in custody" was construed to mean a placing in such manner or fashion that the subject thereof was restrained or detained and was not free to go or remain as she (the female) pleased.

I think "in charge of" and "in custody of," as used in our statute, mean the same thing and that there must have been exercised over the woman some restraint or detaining influence.

In People v. Draper, 169 App. Div. 479,154 N.Y. Supp. 1034, 1040, the court, in discussing a New York statute (Penal Law § 2460, subd. 2) reading, "Any person who shall place any female in the charge or custody of any other person for immoral purposes," said, among other things:

"It is when the conduct takes on a permanent character, when the active party dominates and dedicates the life of a woman to immorality, that the law imposes the severe penalty of `imprisonment'" etc.

See also People v. Odierno, 166 Misc. 108, 2 N.Y. Supp.2d 99.

These cases are the only ones that I have been able to find that have passed upon the meaning of the phrase "in the charge or custody of," and they all hold there must be some restraint or control of the female to constitute the offense.

It would be interesting if the majority opinion would point out what power or control the bellboy had over Marta Bach or the officer. He was a mere messenger boy, doing what they asked him to do. He exercised no restraint or influence, so far as the record shows, over the woman. He in no way influenced her desires or conduct. He conveyed to each of them the wishes of the other and, when requested by the officer to cash his check, did so. If he received from them, or either of them, as much as a tip it is not shown.

The majority opinion holds that the evidence shows defendant "placed Marta Bach in the charge or custody of the officer" for immoral purposes. This is a strange perversion of the facts as well as the language of the statute. Marta Bach was, according to the evidence, a free agent. She was the person who did the placing, uninfluenced by any consideration moving from the defendant. If the evidence showed that the defendant's conduct or actions brought him within the terms and meaning of Section 43-4401 I would not hesitate to join in the majority opinion, but I think that opinion is making the law rather than interpreting it.

I must confess I do not know what the majority mean when they say defendant "waived any right to object to further information." All that defendant asked for was the bill of particulars and when it was furnished he raised the point that he was not therein shown to be guilty of any offense.

I think the judgment of the lower court should be affirmed.