Holloway v. City of Birmingham , 55 Ala. App. 568 ( 1975 )

BOOKOUT, Judge

(concurring).

I am of the opinion that the city ordinance is legally adequate, but without going into the facts of the case, I am of the opinion that the complaint failed to alleged an offense.

Section 43-1 of the City Code of Birmingham establishes two offenses, i. e. (1) no female shall prostitute herself or (2) use any indecent or lascivious language, gestures or behavior to induce any person to illicit sexual intercourse.

The complaint stated that the appellant, “. . . did prostitute herself by making an offer to indiscriminate lewdness to R. E. Henslee contrary to and in violation of Section 43-1 . . .”

An “offer to indiscriminate lewdness” does not constitute the offenses of prostitution. There is a vast difference between an offer and an act. An offer to commit murder is not murder; an offer to commit robbery is not robbery; and, an offer to commit prostitution is not prostitution. An “offer to indiscriminate lewdness” is vague and indefinite and does not apprise a defendant of any offense charged within the wording of Section 43-1, supra.

Since the offense of prostitution is not charged in the complaint, we must look to the second portion of the ordinance to see if the other prohibited conduct set out therein is sufficiently described in the complaint. I think not. If the complaint had stated that the appellant, “used indecent or lascivious language, gestures or behavior to induce R. E. Henslee to have illicit sexual intercourse,” a valid offense may have then been alleged under the second portion of the ordinance. Nowhere does the ordinance make an offer to indiscriminate lewdness illegal. I am, therefore, of the opinion that the demurrer to the complaint should have been sustained.