City of St. Louis v. Mikes

• Decision Date: 19 November 1963
• Docket Number: Nos. 30733,s. 30733
• Citation: 372 S.W.2d 508
• Parties: CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Anthony J. MIKES, (Defendant) Respondent. CITY OF ST. LOUIS, (Piaintiff) Appellant, v. Charles Bud ELLIOTT, (Defendant) Respondent. CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Joan Faith WARE, (Defendant) Respondent. to 30741, 30757.
• Court: Missouri Court of Appeals

Page 508

372 S.W.2d 508

CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Anthony J. MIKES, (Defendant) Respondent.

CITY OF ST. LOUIS, (Piaintiff) Appellant, v. Charles Bud ELLIOTT, (Defendant) Respondent.

CITY OF ST. LOUIS, (Plaintiff) Appellant, v. Joan Faith WARE, (Defendant) Respondent.

Nos. 30733 to 30741, 30757.

St. Louis Court of Appeals, Missouri.

Nov. 19, 1963.

Rehearing Denied Dec. 9, 1963.

Thomas J. Neenan, City Counselor, Eugene P. Freeman, Associate City Counselor, Stephen M. Hereford, Assistant City Counselor, St. Louis, for appellant.

James J. Rankin, Richard Wolff, St. Louis, for respondents.

WOLFE, Judge.

The matter here considered involves twenty-five appeals. All arise out of charges of certain ordinance violations which are based upon the same set of facts, except for the dates that the violations were charged to have occurred. By permission of this court and upon stipulation of counsel, the appeals were consolidated for briefing and argument, and all will be passed upon by this opinion. There was an acquittal of all defendants upon trial in the Court of Criminal Correction, and the City of St. Louis prosecutes these appeals.

Defendants Mikes and Elliott were charged under an ordinance known as Section 38, Chapter 46, Revised Code of St. Louis. This ordinance provides in part that any person who shall 'permit to be exhibited or performed, upon premises under his management or control, any indecent, immoral or lewd play or other representation shall be deemed guilty of a misdemeanor.'

Defendant Ware was charged under Section 37, Chapter 46, Revised Code of St. Louis, which provides that any person who shall appear in a public place 'in a state of nudity or in a dress not belonging to his or her sex in an indecent or lewd dress, or shall make an indecent exposure of his or her person, or be guilty of an indecent or lewd act of behaviour shall be guilty of a misdemeanor.'

These charges arose out of a performance by defendant Joan Faith Ware. The same performance was put on nightly in a tavern called 'Stardust Lounge'. This place was owned and operated by a corporation known as 'Stardust Lounge, Incorporated'. Defendant Elliott was president of the corporation. On nine different occasions defendant Ware was arrested by police officers who viewed her performance. On seven of these occasions both defendants Elliott and Mikes were present, and both were arrested. On two occasions, only Elliott was present, at which time he was arrested with defendant Ware. These arrests started on June 13, 1960, and continued through June 22, 1960.

It was conceded upon trial that Mikes and Elliott employed defendant Ware to perform her act, and that it was performed with their permission upon premises under their control. Because of this there remained but one issue to be tried, and that was whether defendant Ware was guilty. If she was guilty, then so were defendants Mikes and Elliott.

These cases were first tried in the City Court, and that trial resulted in acquittal on all charges. The City of St. Louis appealed to the Court of Criminal Correction. There a jury was waived, and, as stated, upon trial to the court all defendants were again acquitted upon all charges. It is from these judgments of acquittal that the City prosecutes these appeals.

For the reasons stated above, the evidence presented in the Court of Criminal Correction was limited to the determination of whether or not the acts and performance of defendant Ware were lewd and indecent. The performance took place in a room described by the police officer as being about 50 feet by 50 feet in area. There was a bar at which customers could be seated for service and a smaller bar for preparing drinks to be served at tables. The room was otherwise furnished with tables and chairs, except for a small space used for social dancing by the customers of the establishment. There was a three-piece orchestra provided. The floor show was conducted in the dancing area, which consisted of an entertainer telling jokes for about a half hour and the performance by defendant Ware. Her act started from a small, round, revolving platform which looked like the top of a rather large bird bath, with simulated spouts of water which arched upward from its rim. This platform was located about 10 feet from the nearest tables.

Defendant Ware started her performance by mounting the platform. The platform revolved slowly as the three-piece orchestra played. When the defendant mounted the platform she was fully clothed. She was wearing an evening gown, with a scarf covering her head. As the music played and the platform slowly revolved, the defendant assumed various simple poses with her hands and arms. She also displayed her leg through a drape or slit in her dress. She then started to remove her clothing. She proceeded slowly to remove the scarf about her head. Then she removed part of her dress covering the upper part of her torso. As she removed the various parts of clothing, she dropped them into a container near the platform. She slowly removed her skirt, and after holding it at arm's length, dropped it into a container. At this point in her disrobing, she was wearing a brassiere and a scant pair of underpants. Attached to the top of the pants, or to a belt of sorts, were transparent panels, one in front and two in the rear. She then went through some gyrations in time to the music, and assumed some poses. This was followed by her descent from the platform to the dance floor. She sat on the floor close to the customers and went through some more body gyrations.

After this she went to the side of the platform and simulated pouring water from a jug. She then removed an outer brassiere, which she dropped into the container. Under this outer brassiere she was wearing another one, sheer but bespangled and scant. She then returned to the dance floor and went through some more gyrations, after which she returned to the platform and removed the panels which were attached to her costume. The tempo of the music changed, and in a standing position she grasped her ankles and shook her buttocks from side to side. Then standing erect, she did some hip movements. Returning again to the dance floor, she assumed a semi-kneeling position in front of the platform and moved her torso in an up-and-down motion. At this time she was clad in what might best be described as a very scant brassiere and pants. She turned facing the audience, and some of those present yelled, 'More, more--take it off. More, more.' This ended the performance.

A number of photographs and motion pictures had been taken of the act by the police officers. These were before the trial court and shown here on appeal. Three witnesses who viewed the motion pictures stated that they considered the performance below the moral standards of the City of St. Louis. A dancing instructor, who had been so engaged for many years, testified that the performance was not dancing, and that there were but a few times during the performance that any recognizable dance steps were taken by the defendant.

The defendants called two witnesses, who found nothing objectionable in the dance. One of them testified that there was a motion picture shown in St. Louis, called 'Expresso Bango', in which there was considerable female nudity. There was evidence submitted that there were burlesque shows in St. Louis. In addition to the foregoing, a motion picture of a very short portion of the play 'Kismet', which had been put on by the Municipal Opera, was...