State v. Hesselmeyer

• Citation: 123 S.W.2d 90,343 Mo. 797
• Decision Date: 20 December 1938
• Docket Number: 36220
• Parties: The State v. Louis Hesselmeyer and Martha Hesselmeyer, Appellants
• Court: Missouri Supreme Court

123 S.W.2d 90

343 Mo. 797

The State v. Louis Hesselmeyer and Martha Hesselmeyer, Appellants

No. 36220

Supreme Court of Missouri

December 20, 1938

Appeal from Franklin Circuit Court; Hon. R. A. Breuer Judge.

Reversed and remanded.

James Booth and James L. Anding for appellants.

(1) The demurrers offered and requested by defendants at the close of the State's evidence, and at the close of all the evidence in the case should have been sustained. State v Seba, 200 S.W. 300; State v. Calley, 104 N.C 859, 10 S.E. 455; State v. Evans, 5 Ired. 603; Commonwealth v. Lambert, 12 Allen, 177; People v. Gastro, 75 Mich. 133, 42 N.W. 937; People v. Buchanan, 1 Idaho, 681; Hardaman v. State, 273 S.W. 584; Woodson v. Fort Smith, 264 S.W. 934; People v. True, 235 Ill.App. 349; State v. Pyles, 86 W.Va. 636, 12 A. L. R. 527. (a) The demurrers should have been sustained because the information did not designate the particular house on which the sign of an honest occupation was allegedly displayed. State v. McLaughlin, 160 Mo. 33; State v. Malloch, 269 Mo. 235. (b) A defect apparent on the face of an information is open to examination for the first time on appeal. State v. Nunley, 185 Mo. 102; State v. Stowe, 132 Mo. 199. (c) The State's evidence tended to show two isolated acts of intercourse by defendant, Martha Hesselmeyer. A single act of prostitution, or habitual acts by one person, does not constitute the house a bawdyhouse. (2) The court erred in not restricting testimony as to reputation of persons to the traits of character involved. State v. Anslinger, 171 Mo. 600; State v. King, 78 Mo. 555; State v. Dalton, 27 Mo. 13. (3) The court erred in permitting the State's witnesses to testify that defendants had the reputation of operating and maintaining a bawdyhouse without first requiring the witnesses to state that they knew the general reputation of defendants in that respect. State v. Mosby, 53 Mo.App. 576; State v. Bugg, 292 S.W. 50; State v. Price, 115 Mo.App. 656; State v. Flick, 198 S.W. 1134; 54 C. J. 688; 18 C. J. 1268; 16 C. J. 582; Abbott's Trial Evidence (2 Ed.), 851, sec. 24; Wharton on Homicide, secs. 592, 593. (a) Evidence of reputation should be limited to the time of the alleged commission of the criminal act. State v. Bugg, 292 S.W. 50. (4) The court erred in giving to the jury at the request of the State its Instruction C. (a) The instruction is vague, indefinite and misleading. State v. Steele, 226 Mo. 583; State v. Owsley, 111 Mo. 450. (b) The instruction is an incorrect statement of an abstract proposition of law without application to the facts in the case. State v. Ballew, 56 S.W.2d 827; State v. Mundy, 76 S.W.2d 1088; State v. Wilson, 39 Mo.App. 184; State v. Yocum, 205 S.W. 232. (c) Said instruction authorizes a conviction without containing any reference to the alleged signs. State v. McLaughlin, 160 Mo. 33. (5) The court erred in giving to the jury at the request of the State its Instruction D. (a) Said instruction is an abstract proposition of law without application to any fact in issue. (b) Said instruction authorizes a conviction without containing any reference to the alleged signs. State v. McLaughlin, 160 Mo. 33. (6) The court erred in giving to the jury at the request of the State its Instruction F. (a) Said instruction improperly assumed that defendants acted together. State v. Bunton, 285 S.W. 97; State v. Wilson, 39 Mo.App. 184; State v. Yocum, 205 S.W. 232. (b) The acts should be stated conjunctively and not disjunctively. State v. Brotzer, 245 Mo. 499.

Roy McKittrick, Attorney General, and J. F. Allebach, Assistant Attorney General, for respondent.

(1) The information is sufficient in form and substance and follows the language of the statute. Sec. 4295, R. S. 1929; State v. Dildine, 51 S.W.2d 2, 330 Mo. 756; State v. McLaughlin, 60 S.W. 1075, 160 Mo. 33; State v. Griffin, 202 S.W. 543. (2) The form and substance of the verdict is responsive to the issues and is in proper form. State v. Tippett, 296 S.W. 134, 317 Mo. 319. (3) One female inmate inhabiting or resorting in a house for the purpose of prostitution can be sufficient to constitute it a bawdyhouse. 18 C. J. 1241; Fisher v. Paragould, 192 S.W. 220, 127 Ark. 268; Ramey v. State, 45 S.W. 490, 39 Tex. Cr. 200; State v. Young, 65 N.W. 160, 96 Iowa 262; People v. Buchanan, 1 Idaho, 681; Fahnstock v. State, 102 Ind. 156; State v. Gill, 129 N.W. 821, 150 Iowa 210; People v. Mallette, 44 N.W. 962; Bates v. State, 76 S.W. 462; Ramey v. State, 45 S.W. 489. (4) Single act of prostitution or habitual acts by one person will constitute a house a bawdyhouse when evidence shows it to be a common resort. 18 C. J. 1241; State v. Seba, 200 S.W. 300; Commonwealth v. Lambert, 12 Allen, 179; McCain v. State, 57 Ga. 390; King v. People, 83 N.Y. 587. (5) Court properly admitted evidence of the general reputation of inmates and frequenters without restriction as to the traits of character involved. 18 C. J. 1268; State v. Mosby, 53 Mo.App. 577; State v. Dudley, 56 Mo.App. 450; State v. Price, 92 S.W. 174, 115 Mo.App. 656; State v. Bean, 21 Mo. 267; Clementine v. State, 14 Mo. 112; Howard v. People, 61 P. 595, 27 Colo. 396. (6) The court did not err in admitting evidence as to the reputation of defendants as bawdyhouse operators. State v. Mosby, 53 Mo.App. 571; State v. Flick, 198 S.W. 1134; State v. Price, 92 S.W. 174, 115 Mo.App. 656; State v. Pierson, 85 S.W.2d 56, 337 Mo. 475; State v. Cain, 37 S.W.2d 418; State v. Rodgers, 102 S.W.2d 568. (7) Instruction C is proper and correctly states the law. State v. De Shon, 68 S.W.2d 810, 334 Mo. 862; State v. Lindsey, 62 S.W.2d 424, 333 Mo. 139; State v. McLaughlin, 60 S.W. 1076, 160 Mo. 33; State v. Olds, 116 S.W. 1082, 217 Mo. 305. (8) Instruction D was properly given. State v. McLaughlin, 60 S.W. 1076, 160 Mo. 33; Sec. 4295, R. S. 1929. (9) It was proper to instruct the jury that all persons are equally guilty who act together with a common intent and purpose in the commission of a crime and such crime so committed by two or more persons jointly is the act of all and each so acting. State v. Lindsey, 62 S.W.2d 423; State v. Rodgers, 102 S.W.2d 568. (10) Instruction F did not authorize the jury to convict both defendants although they might find that only one of them acting alone participated in the crime when read with Instruction A. State v. De Shon, 68 S.W.2d 810, 334 Mo. 862. (11) Instruction F sufficiently advised the jury of the place which the information charged the defendants maintained as a common assignation house or a common bawdyhouse. State v. Taylor, 238 S.W. 489, 293 Mo. 210. (12) Instruction F properly defined a common bawdyhouse. State v. Horn, 83 Mo.App. 50; State v. Price, 92 S.W. 175, 115 Mo.App. 656. (13) The demurrer at the close of all the evidence was properly overruled and there was substantial evidence to justify the verdict. State v. Barr, 78 S.W.2d 105; State v. Griffin, 202 S.W. 543.

OPINION

Ellison, J.

The appellants, husband and wife, were convicted of displaying signs of an honest occupation and business upon the exterior parts of a house in Franklin County then and there ordinarily used as a common assignation and bawdyhouse, whereby decent persons might be inveigled thereinto, in violation of Section 4295, Revised Statutes 1929 (Mo. Stat. Ann., p. 2992). Their punishment was assessed by a jury at two years' imprisonment in the penitentiary. On this appeal they challenge the sufficiency of the information and evidence, and complain of the admission of improper testimony and the giving of erroneous instructions at the request of the State.

Regarding the sufficiency of the information. Appellants contend it is fatally defective in that it does not designate with particularity the house or building on which the alleged signs were displayed. It alleges that appellants were "in charge of a house and building, to-wit: a one story frame restaurant, tavern and kitchen consisting of a bar room, kitchen and living room and bedroom, and one cabin, commonly known as a tourist cabin . . . said house and building then and there being ordinarily used as a common assignation and bawdyhouse." Then follows a charge that the appellants displayed the aforesaid signs "upon the outer walls, window and roof of said building." The complaint made is that since two buildings are described, a three room tavern building and a cabin, the foregoing allegations do not make it plain whether the signs were on the tavern or the cabin.

We think there is no substance in this assignment and overrule it. This part of the information is poorly drawn but the evident intent was to designate the cabin merely as a cabin, and the tavern as the "house or building." The evidence showed the signs were on the latter; the appellants lived in it; and they did not challenge the information at the trial. It strains credulity to say they were misled. The two cases cited by appellants are easily distinguishable. In State v. McLaughlin, 160 Mo. 33, 40, 60 S.W. 1075, 1076, the indictment failed even to give the location of the building involved except to say it was in the county. In State v. Malloch, 269 Mo. 235, 239, 190 S.W. 266, 267, another building not mentioned in the information was operated in connection with the one charged and evidence was admitted showing acts of illicit sexual intercourse in the former.

Five assignments of error in appellants' brief charge that the evidence was insufficient to support the verdict and judgment. These are based on the proposition that the State failed to establish the tavern was used as a common assignation or bawdyhouse -- this because only two acts of bawdry were proven, and because the evidence showed only one female inmate in the house. On this point we must review the evidence...