Appeal from the Circuit Court of Cook County; the Hon. John J.
Mannion, Judge, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Defendant, Tommy Holloway, was charged with the offense of soliciting for a prostitute. (Ill. Rev. Stat. 1983, ch. 38, par. 11-15(a).) Following a bench trial, he was found guilty as charged and sentenced to one year's conditional discharge. On appeal, he raises three issues for our review: (1) whether the prosecution established his guilt beyond a reasonable doubt; (2) whether section 11-15(a) of the Criminal Code of 1961 proscribes a patron's solicitation of a prostitute; and (3) whether section 11-15(a) is unconstitutional as applied because it punishes the offense of soliciting for a prostitute more severely than that of patronizing a prostitute. (Ill. Rev. Stat. 1983, ch. 38, par. 11-18.) Because we conclude that section 11-15(a) does not encompass a patron's solicitation of a prostitute, we need not address the remaining issues raised by defendant. Accordingly, we reverse defendant's conviction.
The evidence adduced at trial reveals that on June 16, 1984, at approximately 9:45 p.m., two female Chicago police officers, assigned to "Operation Angel" in the city of Chicago, were dressed to resemble prostitutes and stood on a corner on the south side of the city. Defendant and three other individuals were in a car, which stopped across the street from where the two officers were standing. Defendant and a male companion exited the vehicle and approached the officers. The testimony was conflicting as to the conversation which ensued. According to one of the officers, defendant offered her $10 in exchange for sex and offered her a ride in his vehicle. A male officer then appeared and placed defendant and his companion under arrest. According to the defendant, the car in which he was a passenger stopped when the officers called to the occupants of the car. He and his friend left the car in which he was riding and approached the officers. Defendant testified that one of the officers asked him what he wanted for $10, but he declined this offer and he began to walk away when he was placed under arrest. Defendant's companion and another occupant of the vehicle testified on behalf of the defendant. Their testimony substantially corroborated that of defendant. After hearing the aforementioned evidence, the trial court found defendant guilty of soliciting for a prostitute and sentenced him to one year's conditional discharge.
Section 11-15 of the Criminal Code of 1961 provides in relevant part:
"Soliciting for a Prostitute
(a) Any person who performs any of the following acts commits soliciting for a prostitute:
(1) Solicits another for the purpose of prostitution; or
(2) Arranges or offers to arrange a meeting of persons for the purpose of prostitution; or
(3) Directs another to a place knowing such direction is for the purpose of prostitution." Ill. Rev. Stat. 1983, ch. 38, par. 11-15.
• 1 Initially, we must address the State's contention that defendant has waived the issue of whether an alleged patron's solicitation of a prostitute is an offense punishable by section 11-15(a) because of defendant's failure to present this issue to the trial court. In our opinion, defendant's argument challenges the subject matter jurisdiction of the circuit court to punish his conduct as an offense defined in section 11-15(a) and may properly be considered by this court. The Illinois Supreme Court has held that "[t]here can be no doubt that jurisdiction is lacking where the circumstances alleged do not constitute the offense charged as it is defined in the statute and nothing short of alleging entirely different facts could cure the defect. * * * A conviction entered in such a case exceeds the statutory and constitutional authority which determine the subject matter jurisdiction of a court in a criminal case." (People v. McCarty (1983), 94 Ill.2d 28, 38, 445 N.E.2d 298, 304.) Defendant contends that an individual's solicitation of a prostitute does not constitute the offense of solicitation for a prostitute as defined in section 11-15(a). Since the defendant challenges the statutory authority for his conviction, his argument is not waived by his failure to object in the trial court.
We are thus required to interpret the scope of culpable conduct punishable by section 11-15. The State contends that the language of subsection (a)(1), proscribing "solicit[ing] another for the purpose of prostitution" is clear and unambiguous on its face, thus making it unnecessary to resort to the Act's legislative history, and that an interpretation which restricts the meaning of subsection (a)(1) only to persons who solicit on behalf of a prostitute would render that subsection superfluous in view of the language contained in subsections (a)(2) and (a)(3). The State thus reasons that defendant violated subsection (a)(1) by requesting the officer for sexual favors in exchange for money. We disagree.
• 2 The fundamental rule of statutory construction is to ascertain and then give effect to the intent of the legislature. (In re Application of Rosewell (1983), 97 Ill.2d 434, 440, 454 N.E.2d 997, 999.) When the language of a statute is clear, courts will give effect to the legislation without resort to extrinsic means of statutory interpretation. (Chicago National League Ball Club, Inc. v. Thompson (1985), 108 Ill.2d 357, 366, 483 N.E.2d 1245, 1249.) "But where the language is susceptible of differing interpretations, to ascertain the legislative intent it may be necessary to look beyond the express words and consider the purpose to be served by the statute." (City of Chicago v. Strauss (1984), 128 Ill. App.3d 193, 194, 470 N.E.2d 563, 564.) Moreover, criminal statutes are to be strictly construed in favor of the accused. People v. Christensen (1984), 102 Ill.2d 321, 328, 465 N.E.2d 93, 96.
In Daley v. Resnick (1972), 5 Ill. App.3d 683, 284 N.E.2d 39, the court was presented with the question of whether section 11-15 should be interpreted to proscribe solicitation by the prostitute ...