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Show Illllj I Woman Convicted on R Charge of Pandering IS and Sentenced to 18 H Years in Prison Given I Freedom on Her Ap- B peal to Highest Tribu- I nal of State. I INFORMATION IS 1 HELD DEFECTIVE 1 Court Says That From fl Language Used De- H fendant Could Not H Know What Charges to ffl Meet and Defend; Ac- fl cusations Held Too I General. MRS. DORA TOPHAM, better H knowu as "Bcllo London," . H convicted in Judge F. C. Loof- H bourow's division of the Third H district court on a charge of pander- H intr and sentenced to eighteen years in Hj the state prison, was given her free- dom in an opinion handed down yes- H terday by tho state supreme court. Tho wBk case is reversed and remanded to the H district court with instructions to dis-oharee dis-oharee the defendant. The opinion was' unanimous, the three judges com- H prisintr the higher court uniting iu the M belief that thb provisions of tho stat- II ntc aro .too general and that the in- j H formation in this particular case was 9H not sufficiently specific. Basis of Charges. H Mrs. Tonham was the proprietress of W the "stockade," tho segregated dis- 9H trict of Salt Lako City. She was nr rested last fall while the municipal H campaigu was at its height and the Hj "social oviP' question was au issue. jH The case was based ou the alleged H forcblo detention in the stockade of Hfl Doernev Gray, a 17-year-old cirl, and f&fl tho evidence was of a sensational char- IBM acter. IHI Attorney E. A. Rogers, who conduct- SH ed the defense, reserved tho exceptions Ml to rulincs of the lower court, which fll formed the basis of tho anpeal, while BH Powers & Marioneaux argued the mo- IH tion for a. new trial before Judge Loof. bourow and afterwards argued the IH caso in the supreme court- HB The law uuder which the defendant BB was brought to trial provides that "Any person who shall, by promises, SHI throats, violence, or by an' device or lfl scheme, cause, induce or persuade an flSfl inmate of a house of prostitution to remain therein as such inmate" is euiltv of tho crime of pandering. HB The information alleged that the IB dofendant, "by promises and threats H and divers devices and schemes, IH caused, induced and persuaded" a fe-male fe-male and an inmate of a house of prostitution in the stockade, to remain 191 there as such inmate. 1H Statute Is Too General. UK Tho supremo court hold that such an IHH information was defective. The infor- j H mation charged tho offense iu the Inn- iruugc of the statute, The court held , Mm that an information in the language of i HH the statuto is sufficient when the stat- H ute itsolf, in precise and definite terms, Ml prescribes and designates tho acts or. thinos constituting the offense. But jH when tho offense is defined by tho jjjjHj statute iu geueric and general terms mPW and lauguago which embraces Rlfl I many and divers things, then the in- il flj3fl formation in the language of the stat- j MH ute is not sufficient, but the informa- S Wbs tion should ohargo the particular thing 'Mill or thitiEs and acts which are claimed jjfflB the dufoudaut had committed. ! BB These views aro supported in tho !lHu opinion of tho court by the citation of fflBffl numerous enscs aud quotations from jsHw them. Tt is stated iu tho opinion that flE an information which charges a person HhBrRI that he did "by divers schemes aud loua devious" tuduco an inmate to rorauiu lIBSR in a house of prostitution, does not ap- IflRi priso the defendant of the nets con- pISh slitutine the offense, uor nf the purtic- IffljH ular ciroumstanccs necessary to con .iIBW stituto a complete offense; aud that Pimm no person, from such lauguago, could . $?i know whnt the state expected or m- ffjMSfr tended to prove, and hence tho defend- iMi3 ant could not know what he was called m'f y upon to meet and defend. nili! Tho court rofers to cases and quotes v( f (Continued on Page Two.) jgg DOHA B. TOPHI CASE DISMISSED (Continued from Pago Ono,) from thorn, showing- that in such a caso it was essential to state in tho information what tho facts aro, and what acts wore done or committed by tho defendant constituting the dovico or scheme Under tho information tho defendant could not know whether the stato intended to prove that tho defendant had made somo kind of a promise or had usod Bome kind of. a throat or had employed somo kind of a dovico or some kind of a scheme. Tho information does not fairly apprise hor of what tho state in such particulars expected or intonded to prove against her until tho evidence waB adduced. But the court holds that it is the information and not the evidence which is roquired to apprise the do-fondant do-fondant of what is expected to bo proved against hor, and what she was expected to meet and dofond against. It is stated by tho court that if such information is good, thon tho stato might bo permitted to gonorally charge the accused "with having committed the offenso of pandering' and bo allowed to introduco any ovi-denco ovi-denco tending to show the commission of such an offonso. Tho law is, as stated by the court, that every defendant de-fendant is presumed innocont until proved guilty, and likewise tho defendant de-fendant must also bo presumed ignorant ig-norant of what is contended or expected ex-pected to be proved against him, except ex-cept as ho is informed by tho information infor-mation or indictment. Information Weak. The court stated that it was argued by the attorney general that the state did not attempt to provo any threat or devico or scheme, out did provo, as claimed by the attorney goncral, that the defendant had made certain promises prom-ises to the inmate which caused and induced hor to remain in tho house of prostitution. But tho court held that an information wanfcinrr in essential averments cannot be aided by evidece; and that an information, as to circumstances, circum-stances, must Btand or fall by its own structure. Said tho court: "That must nocos-sarily nocos-sarily be true, for it is an orient peak in tho law that pleadings aro tho n'u-dicial n'u-dicial means of investing a court with .'jurisdiction of a subject matter to adjudicate it, and, for res ad.judi-cata, ad.judi-cata, that matter must bo described with reasonable certainty and particularity." Evidence Was Vague. The court, however, in looking at the evidenco, observed that it was as vague and "uncertain as the information itself. Tho court stated that it was made to appear that there was maintained main-tained a stockado, an inclosed cluster of houses in Salt Lnko City; that the houses were occupied, and the business busi-ness of prostitution conducted therein there-in by definito so-called landladies who received and omployod tlioir own inmates, in-mates, and that tho defendant was a sort of supervisor and director of the stockade, and was interested therein; but that, according to . tho evidenco, she had nothing to do with tho procuring procur-ing or emplo3ing of the inmates, nor had auy control over them, except that the inmates wore reciuired to report at hor office. The inmato of one of tho houses of prostitution in tho stockade, who, the stato alleged, was an inmato therein, aud whom it was alleged the defendant, defend-ant, by promises, etc., "caused and induced in-duced to remain therein voluntarily entered tho house of prostitution occupied occu-pied and conducted by ono of tho landladies. land-ladies. It is not chargod or claimed that the defendant had anything to" do in causing caus-ing or inducing tho inmato to enter the house, or that the defendant knew, until the inmate reported to hor, that she was or had been an inmato. From n nnnvnruafinn 1ifri Vinrl hnfwnnn Jin inmate and tho defendant, the promises of the defendant aro deduced. What Girl Testified. The inmate, in the dance hall, asked tho defendant, according to tho testimony, testi-mony, if tho defendant would telephone to the inmato 's mother, and tho defendant defend-ant repliod that she would. Tho inmato further testified, in reply to a question propounded to her by tho district attorney. at-torney. "Why did you stay there after that?" Sho replied, "Because," the defendant de-fendant "said that if my mother was willing to let mo stay there, she would fit me out with nico clothes "and send me to Ogdon." But when asked both on direct and cross-examination, what it was that the defendant said to her. sho each time answered that the defendant said to her that "If your mother don't object, she would buy or give her clothes and send her to Ogden." Tho court observed that this is all the evidenco on tho part of the state which tends to show that any promises were made by the defendant to the inmate, in-mate, and which, it is, averred, caused or induced or persuaded hor to remain an inmate in a house of prostitution. The Only Promise. Tho court observed that, looking at tho language of tho inmate most favorable favor-able to tho stato, the only thing which approached a promise was tho reason given by the inmate whv sho remained, which was that the defendant said to hor "that if my mother "was willing to let mo stay thero (in the stockado) she (tho dofondant) would fit mo out TV?t:li ti?fn clnflmo nnl cnn1 nix n flrr. den." Bnt the court observes that from this Ianguago it is plainly seen that the promise to fit tho inmato out with nico clothes and send her to Ogden Og-den was not conditioned on the defendant's defend-ant's wish or will that tho inmate remain re-main or staj' in the stockado, but on tho wish or will of the mother, if she, not the defendant, "was willing to let rao stay there." Import of the Promise. That oinbraces if the mother waa willing, she might stay; if sho was not willing, the negative was equally embraced. em-braced. And tiiUH the staying or remaining re-maining of tho inmato was conditioned on the will of the mother and not on the will of the defendant. Tho court further shows that a day or two after the inmate was in tlni stockndc tho defendant, as testified to by tho mother, telephoned to the mothor, and in response to such message, mes-sage, tho mother visitod the defendant's defend-ant's office in the stockado, whon the inmate was brought into her pretence, and that the mother aud tho inmate left tho stockade: that the evidence, without dispute, bIiows that tho inmate during tho time she was in the stockado stock-ado at will and voluntarily loft it each morning and rotnrnod in the evening to plv her calling. The court therefore concludes that there is no evidenco to show that tho defendant had offered or promised to jjjjjogo clothes or anything upon tho condition or upon tho understanding that tho inmate in-mate should remain in the stockade, or that tho inmate, because of any such thing said by the defendant was caused or induced to remain such, inmato. in-mato. Tho court further observed that thero was considerable ovidenco shown that an. unlawful business was carried car-ried on in tho stockade and that the defendant was an activo and the principal prin-cipal factor in fostering and maintaining maintain-ing it, but that she was not charged with, nor tried for, or convicted for, any such violations. Information Defective. The court in concluding stated that oven though tho evidence was sufficient suffi-cient to support a good information, tho prosecution must" fail, because of tho fatally defective information, such a defect boin incurable by evidence or verdict; and that it is not a technical, techni-cal, but a sound and fundamental rule in the law that the accused bo apprised, ap-prised, not 1)3' tho evidence, but by the information, with reasonable certainty cer-tainty of tho exact matter of tho accusation. Says the court: "This rule cannot be bent to meet the exigencies of a particular par-ticular caso, not the class or grade of tho person accused. Tho constitution and the statuto prescribe the rulcB by which the sufficiency' of an information informa-tion ma' be determined, and the- apply ap-ply to all alike. They do not proscribe pro-scribe one rule for n keeper or director of a house of prostitution and another for a nun, nor ono rule for one offense of-fense and another for aothcr offonso." of-fonso." The court further snya that the conclusion con-clusion reached holding the information informa-tion fatally defective not only works :l rnvprsril nf f.ho inrifrninnh. hut. n discharge of the dofendant. " The statuto provides that an information may be amended, iu substance, before the plea, but not thereafter. Said tho court on this point: "An amendment' supplying proper allegations and curing cur-ing tho defects of this information is matter of substance, not form. The particular defects were, before ploa, specifically pointed out by the special demurrer. The undoubted right to amend tho information in respect to tho particulars wherein it is defective, defect-ive, then existed. Instead of amonding it, when an amendment was permissible, permis-sible, the hazard of a trial and a conviction con-viction on a bad information was takon. Tho right, to now amend is lost. Tho statuto, whether wisely or unwisely, forbids it. "The order, therefore, is, that tho judgment of tho court below be reversed, re-versed, and the case remanded to tho district court, with directions to dis-oharge dis-oharge the defendant." |