People v. Mead

SHAW, J.

The defendant was convicted of the crime of conniving at, consenting to, and permitting his wife to be placed in a house of prostitution, as defined by the act of 1891 (Stats. 1891, p. 285), and appeals from the judgment of conviction and from the order denying his motion for a new trial.

1. The first error that is assigned is the denial of his motion in arrest of judgment made upon the ground that the information is defective. The provisions of the act defining th,e crime, so far as applicable, are as follows: “Any man who connives at, consents to, or permits the placing or leaving of his wife in a house of prostitution, -or allows or permits his wife to remain therein, shall be guilty of a felony,” etc. The information charges that the defendant at the time and place stated “did then and there willfully, unlawfully, and feloniously connive at, consent to, and permit the placing and leaving of one Gertie Raymond Mead, then and there and at all times herein mentioned the wife of said Fred Mead, in a house of prostitution, situate,” etc. The contention of the defendant is, that this statute is not to be construed literally so as td forbid a husband to place his wife in a house of prostitution, or permit her to remain therein, for an innocent purpose,—as a cook or seamstress, for instance,—but only to forbid the placing or leaving her therein for the purposes of

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prostitution, and that when construed in this way the crime is not complete, unless it is alleged and proven that the wife was left in the house of prostitution with the intention on the part of the husband that she should herself act as a prostitute. It may be conceded for the purposes of this case that if the objection had been raised by demurrer for uncertainty the information would be fatally defective. But where there is no demurrer, and the defect is sought to be raised solely by motion in arrest of judgment, we think a different rule should prevail. Section 1185 of the Penal Code declares that an objection to the sufficiency of the information which is waived by failure to demur, will not be sufficient to justify an order for the arrest of judgment. Under the provisions of the code an information must state the acts constituting the offense “in such manner as to enable a person of common understanding to know what is intended” (sec. 950, subd. 2), and if it is sufficient to withstand this test it is not subject to attack either by general demurrer or by motion in arrest of judgment. (See, also, Pen. Code, sec. 959, subd. 6.) The words used are to be construed “in their usual acceptance in common language,” except technical phrases defined by law. (Pen. Code, sec. 957.) We think it must be admitted that a person of common understanding, construing words according to their usual acceptance in common language, would understand that a man who was charged with “willfully, unlawfully, and feloniously conniving at, consenting to, and permitting” the placing of his wife in a house of prostitution was charged with placing her there for the purpose of prostitution, and not in the innocent capacity of a cook or seamstress. The words “willfully, unlawfully, and feloniously” must be given some effect in construing such language, and they certainly would exclude an act which by law was innocent. The. utmost that can be said in criticism of this information, therefore, is, that it may not be direct and certain as to the particular circumstances of the offense. Such an objection is waived by a failure to demur. (Pen. Code, sec. 1012.)