The State v. Malloch

• Decision Date: 06 December 1916
• Citation: 190 S.W. 266,269 Mo. 235
• Parties: THE STATE v. FRED MALLOCH, Appellant
• Court: Missouri Supreme Court

190 S.W. 266

269 Mo. 235

THE STATE v. FRED MALLOCH, Appellant

Supreme Court of Missouri, Second Division

December 6, 1916

Appeal from Greene Criminal Court. -- Hon. B. G. Thurman, Judge.

Reversed and remanded.

Roscoe C. Patterson and George Pepperdine for appellant.

(1) The court erred in failing to sustain defendant's motion to quash the indictment and in failing to sustain the motions for a new trial and in arrest of judgment. State v McLaughlin, 160 Mo. 33; State v. Olds, 217 Mo 305. (2) The court erred in permitting the State to impeach the reputation of the inmates for virtue and chastity and of the hotel without requiring the prosecuting attorney to specify who were the people impeached so that the testimony could be specifically met. (2) The court erred in permitting testimony to the effect that people had been arrested in the annex charged with lewdness, the annex being a building not covered by the indictment, but across the street from the hotel in question, said testimony being calculated to prejudice the case of the defendant, and defendant not being responsible in any way for such arrests. (4) The court erred in refusing to give defendant's instruction asked. State v. McLaughlin, 160 Mo. 33; 22 Cyc. 1074.

John T Barker, Attorney-General, and Kenneth C. Sears for the State.

(1) The indictment is sufficient. State v. McLaughlin, 160 Mo. 33; State v. Olds, 217 Mo. 305. (2) Evidence as to the reputations of the inmates of a bawdy house is competent. Clementine v. State, 14 Mo. 114; Commonwealth v. Clark, 145 Mass. 251; People v. Hulett, 15 N.Y.S. 631. (3) Evidence as to arrests made in the annexes was competent for the purpose of showing guilty knowledge. Wigmore on Evidence, sec. 301. (4) In order to complain of a failure to instruct upon all the law in this court it is necessary to save an exception to that effect at the time the jury is charged. State v. Pfeifer, 183 S.W. 339; State v. Sloan, 186 S.W. 1002. A building may be a bawdyhouse even though the main business carried on is a hotel. Fitzgerald v. State, 72 S.E. 541. (5) No harmful error was committed by a failure to give instruction A. State v. Smith, 15 R. I. 24.

ROY, C. Williams, C., concurs. Revelle, J., concurs in result only.

OPINION

ROY, C.

The defendant was convicted of keeping a bawdyhouse and displaying thereon the sign of an honest occupation contrary to Revised Statutes 1909, section 4758. He has appealed.

The indictment charges that the defendant kept a bawdy-house at the northwest corner of College and Market Streets in the city of Springfield, and that he displayed thereon the sign "Palace Hotel." It does not expressly charge that the defendant knew that the house was kept for such illegal purposes. That hotel was held by the defendant and his sister under a lease, they owning the furniture. The sister was away. Defendant with his family lived in the hotel and he managed it. The main hotel at the northwest corner of the street crossing contains twenty-four rooms. Across the street from it is what is called the "annex" in the second story, it being connected with the main hotel by an overhead viaduct. There is ample evidence to the effect that for months before the indictment was returned the house was the resort of many persons for illicit sexual purposes, while at the same time it was extensively patronized as a hotel by people who were apparently unaware of the dual nature of the place.

There was evidence tending to show that certain employees of the house managed the illegitimate part of the business without the knowledge or participation of the defendant, but there was evidence also to the contrary.

The State proved by an officer that two people were arrested and taken out of the annex for lewd conduct. To that evidence defendant objected on the ground that the annex was not covered by the indictment. The objection was overruled and there was an exception.

The seventh instruction for the State is as follows:

"The court instructs the jury that the words 'common bawdyhouse or common assignation house,' as used in the indictment and instructions, mean a house where lewd men and women meet and resort for the purpose of having illicit sexual intercourse; and in determining whether or not the house or building described in the indictment was so used, and whether or not the defendant had knowledge of such use, the jury may take into consideration the general bad reputation of the inmates of such house for virtue and chastity, if any such reputation has been shown to your satisfaction by the evidence."

The defendant asked an instruction marked "A" as follows:

"You are instructed that the defendant Fred Malloch had the right to furnish lodging and home for the witnesses, Mable Dennison and Margaret Dale and other women even though you may believe and find from the evidence that said women were prostitutes at the time and were plying their avocation as such. The only duty that devolved upon said defendant was to not knowingly permit the said women to ply their avocation about his premises and in his hotel building."

It was refused. Another instruction asked by defendant was covered by the instruction given.

I. Appellant says that the indictment is insufficient for the reason that it does not charge that the defendant knew the character of the house at the time of the alleged offense.

Bishop's New Crim. Law (8 Ed.), section 1083, says: "A bawdyhouse is any place, whether of habitation or temporary sojourn kept open to the public either generally or under...