State v. Ferguson

• Decision Date: 08 June 1909
• Parties: STATE v. FERGUSON.
• Court: Missouri Supreme Court

120 S.W. 753

221 Mo. 524

STATE v. FERGUSON.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. DISORDERLY HOUSE (§ 24) — PERMITTING GIRL TO ENTER AND REMAIN THEREIN — EXCESSIVE PUNISHMENT.

In a prosecution for permitting a female under 18 to enter and remain in a bawdyhouse, evidence held not to justify the imposition of three years in the penitentiary.

2. CRIMINAL LAW (§ 761) — TRIAL — INSTRUCTIONS — ASSUMING FACTS IN ISSUE.

An instruction that if defendant on a specified date, being then and there the keeper of a certain described house, said house and apartments being at such time used as a common bawdyhouse, did then and there feloniously permit a certain female named, under the age of 18 years, to enter into or remain in said house, they, the jury, will find the defendant guilty, etc., invades the province of the jury by assuming that defendant was the keeper of a common bawdyhouse.

Appeal from Criminal Court, Greene County; A. W. Lincoln, Judge.

Mary Ferguson was convicted of permitting a female under the age of 18 to enter and remain in a bawdyhouse, and she appeals. Reversed.

Elliott W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

BURGESS, J.

On the 21st day of May, 1906, the prosecuting attorney of Greene county filed in the criminal court thereof an information charging that the defendant, "on the 1st day of April, A. D. 1906, and from that date continuously until the 25th day of April, A. D. 1906, at the county of Greene and state of Missouri, being then and there the keeper of, and person in charge of, a certain house and building, to wit, the apartments on the second floor of the building located at number 409 Boonville street, in the city of Springfield, in the county and state aforesaid, said building, house, and apartments being at such time used as a common bawdyhouse and assignation house, did then and there unlawfully, willfully, and feloniously permit a certain female under the age of 18 years, to wit, Leona Ferguson, of the age of 15 years, to enter into and remain in said bawdyhouse and assignation house; contrary to the form of the statute," etc. The trial resulted in the defendant's conviction, and her punishment was assessed at imprisonment in the penitentiary for a term of three years. Defendant duly filed motions for new trial and in arrest of judgment, which were overruled, whereupon she appealed.

The evidence showed that the defendant was in charge of six rooms on the second floor of a building located at No. 409 Boonville street, in the city of Springfield, Mo.; that she was a widow, and had the care of four children, among whom was the girl, Leona, and that all occupied two of said rooms; that defendant rented two of the rooms in her charge to two women of bad character, reputed prostitutes, who received and entertained male companions in their said rooms at unseasonable hours, and rented the remaining two rooms to two men. Defendant's daughter, Leona, was under the age of 16 years. It was shown by the evidence that in January, 1906, the defendant pleaded guilty in the police court to the charge of "lodging in a bawdyhouse," said "house" being the rooms or apartments described in the information; that on April 24, 1906, the police arrested the defendant and the other two women who rented rooms from her, and the records of the police court, introduced in evidence, showed that the defendant and one of said women each pleaded guilty to the...