There is a story, possibly apocryphal, that when a new English translation of the Bible was being edited the committee charged with updating the language was stumped by a term in the Parable of the Prodigal Son. The father, you will recall, upon seeing his son from far off, tells his steward to prepare a fatted calf for a feast. Just how should one convey this quaint term into modern English? Unable to find a fitting answer, it was suggested that they consult a local butcher, and so they did. “What,” they asked the butcher, “did his trade call a young bovine fed a special diet to make it more flavorsome when prepared as a meal for a ceremonial occasion?” “Well,” replied the butcher, “we do have a special term for that. We call it a ‘fatted calf.’”
The foregoing is by way of introducing the case of Paula Jo Smith, who was found guilty of violating Code § 18.2-188 which makes it illegal in Virginia for one to “defraud an innkeeper.” The quaint terminology for receiving food and/or lodging from a commercial establishment without the intent to pay therefore has been around perhaps not quite so long as “fatted calf,” but it still is the most accurate way of describing an offense that had its origins in a time when the acts of dining and lodging were considered inseparable. While taverns and alehouses, which lacked rooms for overnight guests, would occasionally offer some form of victuals, the modern “restaurant” was all but unknown before the late 18th century, but inns where one could be restored (the original meaning of “restaurant”) with food and a bed (or at least a mat on the floor) were a feature of the stopping places, towns and great cities of the Roman Empire and its systems of roads and persisted into the Middle Ages right to the modern day.
In Smith’s case it is unclear whether any food was available with the lodgings she procured for herself and her children, but from the description and the low daily rate cited in the opinion, it is doubtful. Smith fell behind in her payments but assured the owner that she would make good on the balance before leaving. The owner testified that he allowed Smith to stay but increased her daily rate.
Although she made some cash payments over the next several months, she left the hotel with an outstanding balance of more than $2,000 and moved into a different hotel, using $1,000 she had saved to establish her credit. After being unable to find where Smith had decamped, the owner called the authorities.
At her trial, Smith made numerous claims about the living conditions at the hotel and her treatment by the owner and management. She also maintained that she never formed the requisite intent to defraud but left the hotel only because she was unable to pay what she felt was an unfair arrearage. She further maintained that the intent to defraud must arise at the time the lodgings are first occupied. Smith also objected to the circuit court’s limiting her testimony about the conditions at the hotel and her treatment by management.
Smith was convicted and appealed to the Court of Appeals. Although she challenged the circuit court’s alleged limiting of her evidence, she failed to proffer what additional evidence she would have presented, thus most of the specific instances were waived and in those few that arguably were not, the evidence would merely have been redundant, making its exclusion harmless.
The principal issue addressed by the Court was whether the circuit court erred in permitting the jury to determine whether Smith had the requisite intent to defraud. To decide this issue, the Court had to construe another obscure term in Code § 18.2-188, which describes the action of taking lodging as “putting up at a hotel.” Smith maintained that she “put up” at the hotel upon her initial check-in and at that time she lacked the intent to defraud. It was only later, when she fell behind in her payments, that she might have formed such an intent, and by then, in Smith’s view, she had already “put up” at the hotel.
The Court of Appeals notes that “put up” has many meanings, but with respect to lodgings the Court concludes that it simply refers to the act of residing in a place, not the start of the residence. Thus, the Court concludes that Smith “put up” at the hotel each day she was there. It was thus for the finder of fact to decide if and when Smith formed an intent to leave without paying.
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