Richard J. Dowdall, Tucson, for appellant.
Robert Morrison, Atty. Gen., and James H. Green, Jr., Sp. Asst. Atty. Gen., for appellee.
LA PRADE, Chief Justice.
This is an appeal from a judgment finding the defendant guilty of pandering as defined by Section 43-4401, A.C.A.1939, as amended, now Section 13-591, A.R.S.1956.
Briefly the testimony is as follows: William Anderson, a member of the Tucson Police Department, was assigned to a plainclothes detail on the evening of February 9, 1955. While standing at a bar in that city he was approached by the defendant, and after some innocuous conversation was asked in substance if he would like to have sexual relations with a woman. Anderson replied in the affirmative, so both [80 Ariz. 83] men entered Anderson's car and drove a few blocks, whereupon defendant got out and knocked on a door. Receiving no answer they decided to return to the tavern. As they approached it defendant pointed out a woman on the sidewalk, presumably the one he had been seeking. The two men got out of the car and after a very informal introduction the woman, Stella Russell, was asked by the defendant, in substance, if she wanted to have sexual intercourse with this man. Her unembellished reply was in the affirmative, whereupon she then led Anderson around behind the tavern to an apartment which they entered. Upon Stella's request for six dollars Anderson handed her the money and placed her under arrest. Immediately thereafter, Anderson arrested the defendant.
At the close of the State's case defendant moved for a directed verdict, contending that the evidence did not show that he was guilty of any violation of Section 43-4401, supra. This section reads as follows:
'Pandering.-Any person who shall place any female in the charge or custody of any other person for immoral purposes, * * * is guilty of pandering and shall be punished by a fine of not less than one thousand dollars ($1,000) and by imprisonment for
not less than one (1) nor more than ten (10) years.'
The heart of this section lies in the meaning of the terms 'place * * * in the charge or custody of'. At the very outset defendant is confronted with the holding in State v. Hart, 1944, 61 Ariz. 191, 146 P.2d 211, wherein this very clause was construed. A divided court (2-1) held, reversing the lower court, that 'place', as used in the statute, does not imply the element of force or restraint, either physical or moral. The majority seems to have based its decision largely on the holding in State v. Hanes, 1915, 84 Wash. 601, 147 P. 193, where the Washington court had been called upon to construe the following pandering statute, Rem. & Bal.Code, § 2440:
"Every person who shall place a female * * * in a house of prostitution with intent that she shall live a life of prostitution * * * shall be punished * * *.'
The defendant in the Hanes case argued that the word 'place' meant more than a mere invitation to remain at a place; that a restraint of some sort was implied. The Washington court disagreed with this contention, holding that the statute 'does not imply the element of force, either physical or moral.'
In a vigorous dissent to the majority opinion in the Hart case (61 Ariz. 191, 146 P.2d 215) Ross, J., argued that the words "place any female in the charge or custody of any other person" meant that the woman had to be placed where she was subjected in some manner to the control of another; that some sort of restraint upon her actions had to be imposed. Justice Ross quoted [80 Ariz. 84] from the opinion in People v. Drake, 1912, 162 Cal. 248, 121 P. 1006, wherein the Supreme Court of California was called upon to interpret the meaning of the following statute:
"Every person who receives any money or other valuable thing for or on account of his placing in custody any female for the purpose of causing her to cohabit with any male to whom she is not married, is guilty of a felony." Pen.Code, § 266d.
The California court held that the words "placing in custody" were an essential element of the crime, stating:
'* * * 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 ...