(Syllabus.)
1. Prostitution-Statutory Provision.
1. Tit. 21 O. S. Supp. 1943 § 1028, provides:
"It shall be unlawful in the State of Oklahoma: * * *
"(c) To offer, or to offer to secure, another for the purpose of prostitution, or for any other lewd or indecent act:
2. Same--Conviction not Sustained by Evidence. Record examined, and evidence found to be insufficient to support conviction of defendant under terms of statute. 21 O. S. Supp. 1943 § 1028.
Appeal from County Court, Garfield County; Paul Edwards, Judge.
Harry Dunham was convicted of the crime of "making an offer to one Arlo Martin to secure another for the purpose of prostitution with said Arlo Martin", and he appeals. Reversed.
Harry C. Kirkendall, of Enid, for plaintiff in error.
Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Harry McKeever, Co. Atty. of Enid, for defendant in error.
BAREFOOT, P. J. Defendant, Harry Dunham, was charged in the county court of Garfield county with the crime of unlawfully "making an offer to one Arlo Martin to secure another for the purpose of prostitution with the said Arlo Martin." He was tried, convicted and sentenced to serve a term of four months in the county jail and pay costs amounting to $37.25, and has appealed.
A number of assignments of error are made, but we consider it unnecessary to refer to all of them.
The statute under which defendant was charged is 21 O. S. Supp. 1943 § 1028, and is as follows:
Page 206
"It shall be unlawful in the State of Oklahoma:
* * * * * * * * * * * *
"(c) To offer, or to offer to secure, another for the purpose of prostitution, or for any other lewd or indecent act."
At the time of the oral argument of this case, it was insisted that the evidence of the state, which consisted of one witness, revealed that there was no solicitation on the part of the defendant, but that the solicitation was by the prosecuting witness himself. The Assistant Attorney General in charge of this prosecution at the time of oral argument admitted that this was true and confessed error in this ease. Since that time, however, a brief has been filed by the state attempting to uphold this judgment and sentence.
We have carefully read the evidence of the prosecuting witness and are of the opinion that it is insufficient to sustain the verdict. There is no proof to show that the defendant solicited the prosecuting witness at any time.
For the reason above stated, the judgment and sentence of the county court of Garfield county is reversed.
JONES, J., concurs. DOYLE, J., not participating.