City of St. Louis v. Wyatt

• Decision Date: 19 June 1945
• Docket Number: 26588
• Parties: CITY OF ST. LOUIS v. WYATT
• Court: Missouri Court of Appeals

189 S.W.2d 129

CITY OF ST. LOUIS v. WYATT

No. 26588

Court of Appeals of Missouri, St. Louis

June 19, 1945

'Not to be reported in State Reports.'

George L. Vaughn, of St. Louis, for appellant.

George L. Stemmler, City Counselor, and William Robert Davis, Asst City Counselor, both of St. Louis, for respondent.

OPINION

HUGHES

This appeal is from a judgment of the St. Louis Court of Criminal Correction, whereby the defendant was found guilty, and a fine of $ 100 assessed, for violation of a City ordinance. It is conceded that the information is in the words of the ordinance except the conjunctive 'and' is substituted for the disjunctive 'or,' so that the charging part of the information reads as follows:

'In this to-wit: In the City of St. Louis, and State of Missouri on the 8th day of August, 1943, the said Hattie Wyatt did then and there engage in prostitution, and did aid and abet prostitution, and did procure and solicit a person for the purpose of prostitution with another, and did knowingly accept, receive, levy and appropriate money and other thing of value, without consideration, from the proceeds of the earnings of a woman engaged in prostitution.'

The defendant throughout the proceedings, by motion to quash, objection to the introduction of evidence, and demurrers to the evidence, has strenuously assailed the information as being duplicitous, in that the ordinance denounces four distinct offenses in the disjunctive, each repugnant to the other, and the use of the conjunctive instead of the disjunctive in the information is an attempt to charge several different offenses in one count.

The defendant was clearly right and her motion to quash, which in effect was the same thing as a motion to strike out, should have been sustained. Section 938, R.S.1939, Mo.R.S.A. § 938; City of St. Louis v. Weitzel, 130 Mo. 600, 31 S.W. 1045.

This information charges that the defendant --

First, did then and there engage in prostitution.

Second, did aid and abet prostitution.

Third, did procure and solicit a person for the purpose of prostitution with another.

Fourth, did accept, receive, levy and appropriate money, etc., from the proceeds of the earnings of a woman engaged in prostitution.

Each of these offenses is separate and distinct from the other, and proof of one would not prove either of the others. It is only when several offenses, which are not repugnant in their nature, are forbidden in the alternative, or set forth in an ordinance or statute disjunctively, that they can all be united conjunctively in one count, and that count be sustained by proof of one of the offenses charged. State v. Burk, 188 Mo.App. 683, 176 S.W. 487; State v. Thierauf, 167 Mo. 429, 442, 67 S.W. 292; State v. Bach, 25 Mo.App. 554; State v. Sherman, 137 Mo.App. 70, 119 S.W. 479; State v. Nicholas, 124 Mo.App. 330, 101 S.W. 618; City of St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 89 S.W. 617, 1 L.R.A.,N.S., 936.

The defendant is entitled to know what she is to answer; she should not have to guess at what she is to defend against or speculate as to the meaning of the allegations in the charge. The charges should be sufficiently clear that the court may know what it is to try, and of what it is to acquit or convict.

This information is unlike that in the case of City of Cape Girardeau v. McLain, Mo.App., 61 S.W.2d 232, where the ordinance, as here, contained several different offenses, but the information only alleged the violation of one of such offenses.

For a further and more cogent reason this judgment cannot be upheld, and that is because there is no substantial evidence that defendant was guilty of violating any one of the offenses denounced by the ordinance. The evidence on behalf of plaintiff is that a police officer went to defendant's home, which was on the second and third floors of the building, and rang the door bell, and when the door was opened he walked in and walked up a stairway; defendant was there and asked what he wanted, and the officer asked her 'If there's any girls around'; defendant said 'Well, I may be able to find one, I don't know'; she asked him to step in the room, and a few minutes later Mary Whitesides came into the room, and after solicitation by the officer, told him she would go to bed for two dollars; that they proceeded towards a back room, and defendant was with them, and when they got to the room defendant said,...