Kansas City v. Martin

• Court: Missouri Court of Appeals
• Writing for the Court: CROSS
• Citation: Kansas City v. Martin, 369 S.W.2d 602 (Mo. App. 1963)
• Decision Date: 03 June 1963
• Docket Number: No. 23784,23784
• Parties: KANSAS CITY, Missouri, Respondent, v. Mabel MARTIN, Appellant.

Page 602

369 S.W.2d 602

KANSAS CITY, Missouri, Respondent, v. Mabel MARTIN, Appellant.

No. 23784.

Kansas City Court of Appeals, Missouri.

June 3, 1963.

Blackford, Imes, Compton & Brown, Kansas City, for appellant.

Keith Wilson, Jr., City Counselor, James F. Karl, Asst. City Counselor, for respondent.

CROSS, Judge.

Defendant was convicted in the municipal court of Kansas City, Missouri, on the charge of violating Section No. 47.070 of the city's ordinances, entitled 'Soliciting for Immoral Purposes'. Upon appeal by defendant to the circuit court, trial was to a jury which found her guilty of the alleged offense and assessed a punishment of 'three months and $100.00 fine'. Defendant appeals from the judgment.

Defendant was tried upon an information filed April 4, 1962, which charges 'that on or about the 30th day of March, A.D., 1962, one Mabel Martin did unlawfully solicit another person, in a hotel, for the purpose of prostitution, or for the purpose of an act of sexual perversion', in violation of Section 47.070 of the Revised Ordinances of Kansas City, Missouri.

Section 47.070 of the city's ordinances above referred to provides as follows:

'Soliciting for immoral purposes.--No person shall solicit any other person upon the streets, sidewalks or other public places of the city, or in or about any tavern, saloon, tap room, bar, rooming house or hotel, for the purpose of prostitution or sexual perversion. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor'.

The only witness who testified on the issues was one James D. Irwin, a 'semiretired', unemployed salesman, who identified himself additionally as a volunteer member of the reserve unit of the Kansas City police force, attached to the vice squad, working without pay. He testified, on behalf of the city, that on the night of March 29, 1962, at 11 o'clock P.M., he 'made an investigation of prostitution activities at the Tanner Hotel'; that in so doing he entered the hotel, engaged a bellboy in conversation and told him 'I would like to have a good time.' Irwin registered at the direction of the bellboy and was assigned a room. The bellhop took Irwin on the elevator to the assigned room and told him that 'shortly there would be a young lady step up'. A few minutes later, there was a knock on the door, and at Irwin's invitation, a woman identified by him as defendant, entered the room. Irwin testified without objection that defendant told him she had been sent up to entertain him, 'for him to have a good time', that she had whatever time he would care to have, and that 'she gave me a price of $20.00 for an act of prostitution'. When asked what defendant said 'in that connection'; Irwin stated that she used certain words which appear to be in the vernacular and of an indelicate nature. For that reason we do not see fit to set them out in this opinion--nor do we deem it necessary to do so. It is sufficient to say that the jury could reasonably find or infer that the words attributed to defendant by the witness constituted a specific solicitation of an act of prostitution or sexual perversion.

After defendant made the statements above noted, Irwin identified himself as a police officer and placed her under arrest. Thereafter (so Irwin testified) defendant made the statement that 'she had been in the business quite a long time'. There is no evidence before us that any sexual act was committed.

At the conclusion of plaintiff's case, defendant filed a motion for a directed verdict of acquittal, which the trial court denied. Defendant offered no evidence. The case was submitted to the jury under plaintiff's verdict-directing Instruction No. 3, which reads in part as follows:

'If you find and believe from the evidence beyond a reasonable doubt that within the corporate limits of the City of Kansas City, County of Jackson, State of Missouri, or on or about the 29th day of May the defendant herein, Mabel Martin, did then and there unlawfully solicit a person, in or about the Tanner Hotel, 917 Locust, Kansas City, Missouri, for the purpose of sexual intercourse for hire with her then you will find the defendant guilty of soliciting for the purpose of sexual intercourse for hire and so find in your verdict.

'Unless you find the facts as above stated, you are instructed to acquit the defendant. * * *'

In defendant's first point she submits that the city failed to prove (1) the allegations of the information, (2) the corpus delicti, and (3) intent on her part to solicit for an act of prostitution. We find no merit in these contentions. It is our opinion that the city made a case and that the jury's verdict is supported by the evidence of defendant's acts and statements viewed as a whole and in the light of all the circumstances surrounding the incident in question. The jury could reasonably find that defendant made the unlawful solicitation charged against her from the undisputed testimony that she entered the hotel room of a strange man at a midnight hour, informed him she was there for his entertainment and that her time was at his disposal, and that she quoted a 'price' of $20.00 for her proposed favors--even without a consideration of the additional language allegedly spoken by defendant which we have chosen not to incorporate in this opinion. 'A solicitation (for the purpose of an unlawful sexual act) * * * need not be in any particular form of words, and it may well be that solicitation, within the meaning of the statute, can be accomplished by gesture and other indication quite as effectively as by the use of any set or particular formula of language.' State v. Render, 203 Iowa 329, 210 N.W. 911. Also see Curran v. United States, Mun.App., D.C., 52 A.2d 121. The case of City of St. Louis v. Wyatt, Mo.App., 189 S.W.2d 129, cited by defendant, is not authoritative on the issues raised by this appeal. In order to convict the defendant in the Wyatt case, it was necessary for the city to show an act of prostitution. In the instant case, the proof of solicitation of the unlawful sexual act is sufficient.

Since the evidence is sufficient to prove the alleged unlawful solicitation by defendant, it necessarily follows that the corpus delicti has also been established--that the specific offense charged has been committed by some person. Likewise, we rule that the necessary intent on the part of defendant to violate the ordinance may be inferred from the evidence which we have found sufficient to prove its violation. 'An intention to commit an act forbidden by law is to be inferred, except under a statute which makes the intent an essential part of the statutory charge * * *'. State v. Granger, Mo.App., 199 S.W.2d 896.

In her second point defendant urges that 'the information was incomplete and misleading and duplicitous'. Her only specific complaint of the information is that it did not reveal the identity of the person allegedly solicited by her. For that reason, defendant argues, she could not prepare her defense. We do not find the pleading defective as charged. It consists of 'a plain, concise and definite written statement of the essential facts constituting the offense charged.' Rule 37.18, Missouri Rules of Practice and Procedure in Municipal and Traffic Courts, V.A.M.S. It contains allegations advising defendant of the time, place and particulars of the offense charged against her with sufficient definiteness to be pleaded in bar of a subsequent prosecution. Furthermore, the information is phrased in and follows the language of the ordinance. As we said in Kansas City v. Bondon, Mo.App., 328 S.W.2d 168, 'The information describes the act complained of in the language of the ordinance and is, therefore, sufficient to sustain a conviction. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450, 453; City of St. Louis v. Weitzel, 130 Mo. 600 (Syl. 2), 31 S.W. 1045'.

In her next point, defendant undertakes to invoke the doctrine of entrapment as a defense. Unfortunately, from her standpoint, these efforts are untimely and misdirected.

The rules applying to entrapment as a defense are stated by the Supreme Court in State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, as follows: 'Where the criminal intent originates in the mind of the defendant on trial, and the offense is accomplished, it constitutes no defense that an opportunity is furnished, or that an officer aids the accused in the commission of the crime, in order to obtain evidence upon which to prosecute him. But where the criminal intent originates in the mind of the entrapper, and the accused is lured into the commission of the offense charged, in order to prosecute him therefor, it is the general rule that no conviction may be had, though the criminality of the act is not affected by any question of consent. Butts v. United States (C.C.A. ) 273 F. 35, 18 A.L.R. 146'. ¹

The determination of whether there has been an entrapment of a defendant into the commission of an offense is a question of fact in each particular case. The general rule governing such determination is stated in 23A C.J.S. Criminal Law Sec. 1128, p. 279, as follows: 'Ordinarily, where the evidence is sufficient to justify submission to the jury or where the evidence is conflicting, it is for the jury, ² and not, except where the case is tried without a jury, the trial court, to determine whether there was an entrapment; or, as it is sometimes stated, the issue of whether accused was entrapped is a question for the jury, unless the evidence is so clear and convincing that it can be passed on by the trial court as a matter of law'.

We believe that the evidence in this case justifies and requires the submission to the jury of the entrapment question, inasmuch as we are also of the opinion the jury could reasonably find that the 'criminal intent' originated in the mind of the officer who suggested and instigated the alleged offense.

The fact that defendant did not request an instruction...