State v. Boyd

• Decision Date: 06 June 1905
• Citation: 196 Mo. 52,94 S.W. 536
• Parties: STATE v. BOYD.
• Court: Missouri Supreme Court

94 S.W. 536

196 Mo. 52

STATE v. BOYD.

Supreme Court of Missouri, Division No. 2.

June 6, 1905.

Rehearing Denied May 22, 1906.

1. INDICTMENT—DUPLICITY.

An indictment charging a police captain with omitting to prevent the maintaining of bawdy houses in his district, with the omission to arrest certain designated keepers of different bawdy houses, and with the omission to arrest the inmates and habitues of the house as vagrants; was not bad for duplicity, but charged but one offense, the gravamen of which was that defendant unlawfully permitted houses of ill fame to be set up and maintained within his district; and the allegations of failure to arrest the offenders named were merely amplifications of the offense charged.

2. OFFICERS — CRIMINAL RESPONSIBILITY — STATUTES—CONSTRUCTION.

A statute prescribing a punishment for any officer convicted of "any willful misconduct or misdemeanor in office or neglect to perform any duty enjoined on him by law," being in force at the time of the adoption of Const. art. 14, § 7, requiring the General Assembly, in addition to other penalties, to provide for the removal from office of officers on conviction of willful, corrupt, or fraudulent violation or neglect of official duty, subjects an officer to conviction for misconduct only when the misconduct is willful or fraudulent.

3. SAME—INDICTMENT—SUFFICIENCY.

An indictment charging an officer with misconduct in violation of the statute prescribing a punishment for an officer who shall be convicted of any willful misconduct or neglect to perform any duty enjoined by law must allege that the misconduct was willful, corrupt, or fraudulent.

Appeal from St. Louis Court of Criminal Correction; Hiram N. Moore, Judge.

Samuel J. Boyd was indicted for official misconduct. From a judgment sustaining a demurrer to the indictment, the state appealed to the Court of Appeals (84 S. W. 191), and the cause was certified to the Supreme Court. Affirmed.

This cause is certified to this court by the St. Louis Court of Appeals. The respondent was indicted for official misconduct. To the indictment he interposed a demurrer, which was by the St. Louis court of criminal corrections sustained, and from the action of the court upon the demurrer the state prosecuted its appeal to the St. Louis Court of Appeals. In that court the assignments of error were heard and the conclusions of the court announced in an opinion by Bland, J.; Reyburn, J., dissenting. The dissent by one of the judges of that court furnished the basis for certifying the cause to this court. The majority opinion of the St. Louis Court of Appeals is as follows:

"Omitting caption, the indictment is as follows: "The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court duly impaneled, sworn, and charged, upon their oath present, that at the city of St. Louis aforesaid, and on the fifteenth day of February, in the year one thousand and nine hundred and three (and for a long time prior thereto), one Samuel J. Boyd was a public officer and a person holding trust and appointment, within and for the city of St. Louis and state of Missouri, to wit, a member of the Metropolitan police force and department of the city of St. Louis, of the grade and designation of captain of police, duly appointed, enrolled, and employed by the board of police commissioners of said city, assigned and detailed to, and the principal officer of police and in command of that portion of territory of said city known and designated, for the purpose of police government, and duly established by the said board of police commissioners of said city, as the Fourth police district of said city, and that the said Samuel J. Boyd was then and there (and for a long time had been), by virtue of the laws of the state of Missouri, a state officer. That he, the said Samuel J. Boyd, was then and there (and for a long time prior thereto had been) duly appointed and designated as such captain of police by the said board of police commissioners of said city, under and by virtue of the laws of the state of Missouri, and was then and there (and for a long time prior thereto had been) duly commissioned, sworn, and assigned and acting as such captain of police, and in command, control, supervision, and direction, for the purposes of police government, and to enable the said board of police commissioners to perform the duties imposed upon them by law, of the said Fourth police district of said city. That under and by virtue of the laws of the state of Missouri it was the official duty of the said board of police commissioners of said city, and of every member of the said police force and department of said city appointed, enrolled, and employed as such by the said board of police commissioners, and the official duty of him, the said Samuel J. Boyd, as such member of said police force and department, and as such captain of police, and as such police officer, and as such state officer, at all times of the day and night, within the boundaries of said city, to preserve the public peace, to prevent crime and arrest offenders, to prevent and remove nuisances on all streets and highways and other places, and to see that all laws of the state of Missouri relating to vagrants and disorderly persons were enforced. That he, the said Samuel J. Boyd, as such captain of police then and there (and for a long time prior thereto) had under his command and subject to his orders numerous sergeants and patrolmen of police, members of the said police force and department, and was vested with adequate power and authority as such captain of police in command of said Fourth police district, and as such public and state officer, for the proper and efficient performance of the duty aforesaid. That at the said City of St. Louis, and on the said fifteenth day of February, in the year one thousand nine hundred and three (and for a long time prior thereto), and within the territory so known and designated as the said Fourth police district of said city, so commanded by him, the said Samuel J. Boyd, as captain of police as aforesaid, there were, and had been for a long time, continuously, openly, and notoriously set up, kept, and maintained certain common bawdy houses and brothels; and that then and there, and for a long time prior thereto, unlawful and disorderly conduct and practices were committed in each and all of said houses, and divers common prostitutes and bawds, vagrants, and disorderly persons resorted to and resided in said houses for the purpose of common prostitution and bawdry, and solicited men for the purpose of sexual inter-course therefrom and in front thereof, which said common bawdy houses and brothels were so set up, kept, and maintained in said Fourth police district in certain buildings situated upon certain streets and highways of said city, known and designated as North Twelfth street, North High street, Linden street, and Gay street, which said buildings were known and designated respectively by the following street numbers, to wit: The building designated as No. 703 North Twelfth street, the building designated as No. 705 North Twelfth street, the building designated as No. 707 North Twelfth street, the building designated as No. 709 North Twelfth street, the building designated as No. 711 North Twelfth street, the building designated as No. 713 North Twelfth street, the building designated as No. 721 North Twelfth street, the building designated as No. 726 North Twelfth street, the building designated as No. 821 North Twelfth street, the building designated as No. 1205 Linden, the buildings designated as Nos. 1208 and 1210 Linden street, the building designated as No. 1235 Linden street, the building designated as No. 721 North High street—wherein the said common bawdy houses and brothels were then and there (and for a long time had been) so continuously, openly, and notoriously set up, kept, and maintained, respectively, by Fannie Adams, Rose Brown, Birdie Hill (alias Hall), Becky Weinstein, Lena Cohen (alias Smith), Ida Smith, May Smith, Annie Brown, Becky Schwartz, Martha Sharp, Annie Smith, R. Johnson, Lillie Smith, and May Connor. That it was the official duty as aforesaid of the said Samuel J. Boyd, as captain of police as aforesaid, in command of said Fourth police district as aforesaid, and as such police officer and state officer as afore said, to arrest and cause to be arrested the said Fannie Adams, Rose Brown, Birdie Hill (alias Hall), Becky Weinstein, Lena Cohen (alias Smith), Ida Smith, May Smith, Annie Brown, Becky Schwartz, Martha Sharp, Annie Smith, R. Johnson, Lillie Smith, and May Connor for violation of the law and for crime in so setting up, keeping, and maintaining said common bawdy houses and brothels as aforesaid in said city of St. Louis, that they might be dealt with according to law, and to prevent said violation of law and crime, and to prevent and remove such common bawdy houses and brothels as common nuisances, and to arrest and cause to be arrested said common prostitutes, bawds, and disorderly persons as vagrants. That nevertheless the said Samuel J. Boyd, being such captain of police as aforesaid, and commanding said Fourth police district as aforesaid, and being such public officer and state officer as aforesaid, and then and there (and for a long time prior thereto) well knowing the premises as aforesaid, did then and there, unlawfully and willfully, wholly neglect and omit to perform his said official duty as aforesaid, and then and there continuously did unlawfully and willfully wholly neglect and omit to use and exercise and to cause to be used and exercised all proper, reasonable, and effective means within his power and authority as such captain of police, and as such public officer and state officer, for the prevention of the setting up, keeping, and maintaining of the said common bawdy houses and brothels and each of them, and for the...