State v. Canton

• Citation: 43 Mo. 48
• Parties: STATE OF MISSOURI, Respondent, v. JOHN CANTON, Appellant.
• Decision Date: 31 October 1868
• Court: Missouri Supreme Court

43 Mo. 48

STATE OF MISSOURI, Respondent,

v.JOHN CANTON, Appellant.

Supreme Court of Missouri.

October Term, 1868.

Appeal from St. Louis Criminal Court.

Cline, Jamison & Day, for appellant.

The language of the ninth subdivision of article IV of ordinance 5421 is equally applicable to prostitutes who carry beer in their own saloons as it is to those who carry beer in saloons belonging to others, and the reason for preventing it in the one case is the same as in the other.

Shreve & Staples, for respondent.

WAGNER, Judge, delivered the opinion of the court.

This was a criminal prosecution for an assault and battery alleged to have been committed by the defendant, a member of the metropolitan police in the city of St. Louis, on the person of one Mollie Fitzgerald. The case was tried in the court below, on an agreed statement of facts, which are inserted in the bill of exceptions, and the defendant was convicted. The agreed statement shows that, on the 12th day of February, Mollie Fitzgerald, Annie McNash, Jennie Lyman, and Jennie Reilly, were engaged, under the name and style of Jennie Lyman & Co., in the basement story of a house on the southwest corner of Fifth and Market streets, in the city and county of St. Louis, in vending beer and ale, it being then and there a drinking and beer saloon; that they had a license to vend spirituous and malt liquors at said saloon, as keepers thereof, duly issued by the State and by the city and county of St. Louis, at that time, and were the owners and proprietors of said saloon, and were all prostitutes and lewd women, and having the reputation of lewd women and prostitutes; and that, on the night of said 12th day of February, said saloon was attended by a large number of customers, comprised of men and boys, but was conducted in an orderly, quiet manner, and no complaint was made against them; and that while said Mollie Fitzgerald and her associates were engaged in carrying beer in said saloon to their customers, and in waiting on them, said defendant, who was then and there a metropolitan police officer, entered said saloon, and with force arrested and carried said Mollie to the station-house in that district in said city, and caused her to be imprisoned and locked up under an accusation of vagrancy, and to be reported to the recorder as a vagrant. At the time these proceedings were had, section 12 of an ordinance of the city of St. Louis establishing and regulating the police department was in full force, and is as follows: “It shall be the duty of the privates to be punctual at roll-call; to obey punctually to the best of their ability the orders of the chief of police, the captain of the city guard, and the lieutenant to whose command they may be assigned; to remain on their respective beats, and not to leave the same except in the discharge of their respective duties. They shall arrest all persons found in the act of violating any law or ordinance. They shall arrest all persons found under suspicious circumstances, and who cannot give a good account of themselves, and convey all persons so arrested to the station-house of the district in which any arrest may be made, and report to the lieutenant of such district the cause of the arrest, the names of the witnesses, and the facts connected therewith. The members of the guard shall have authority to enter any house, inclosure, or other place, when a breach of the peace, or crime, or breach of ordinance has been or is being committed, and to arrest the offender, or offenders, but shall not enter any dram-shop, bawdy-house, or other place of degradation, except in discharge of their duty.” Also, section 1 of article IV of ordinance No. 5421, entitled “An ordinance concerning misdemeanors,” which reads as follows: “SEC. 1. A vagrant, under the meaning and provisions of this ordinance, shall be deemed to be * : * *” ““ Ninth--Any prostitute, courtesan, bawd, or lewd woman, or any female inmate of any bawdy-house, house of prostitution, house of assignation, brothel, or house of bad repute, who shall be found wandering about the streets in the night-time, or frequenting dram-shops or beer-houses, or any such lewd woman having the reputation of a prostitute who shall be found employed as a beer-carrier, or waiting, attending, or carrying beer, or any other thing, in any beer or drinking saloon, either in the day or night time, or who may be found employed in singing or dancing in a lewd or indecent manner in such a house.” “SEC. 6. Whoever shall be convicted of being a vagrant under the provisions of section first of this article shall be adjudged to pay a fine as follows: if under the first or ninth clause, not less than ten nor more than fifty dollars.”

On the above facts the court gave this instruction: “If the court, sitting as a jury, find from the evidence that the witness, Mollie Fitzgerald, was the owner and proprietor of the saloon situated on the southwest corner of Market and Fifth streets, in the city of St. Louis; that she was duly authorized by license from the State of Missouri and the county and city of St. Louis to carry on the business of selling beer and other liquors at said saloon; and that, while she was quietly and peaceably attending to her business in said saloon, waiting on customers and carrying or delivering beer, the defendant seized hold of her, and...