State v. Kearns

• Decision Date: 31 July 1924
• Docket Number: No. 24023.,24023.
• Citation: 264 S.W. 775
• Parties: STATE ex rel. ORR v. KEARNS.
• Court: Missouri Supreme Court

264 S.W. 775

STATE ex rel. ORR v. KEARNS.

No. 24023.

Supreme Court of Missouri, Division No. 1.

July 31, 1924.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Proceeding by the State, on the relation of Cameron L. Orr, Prosecuting Attorney of Jackson County, against Leannah Kearns, alias Annie Chambers, to restrain maintenance of a bawdyhouse. From a decree granting perpetual injunction, defendant appeals. Affirmed in part, reversed in part, and remanded.

J. Francis O'Sullivan, of Kansas City, for appellant.

Jesse W. Barrett, Atty. Gen., and Allen May, Special Asst. Atty. Gen., for respondent.

LINDSAY, C.

This proceeding was instituted on June 27, 1921, by the prosecuting attorney of Jackson county in the circuit court of that county, under the provisions of the act approved March 28, 1921 (Laws of 1921, page 523). An injunction was granted perpetually restraining the defendant from maintaining a nuisance by conducting or keeping a bawdyhouse or house of assignation, upon certain premises owned by her, situated on West 3d street in Kansas City, and also directing the closing of the premises, and keeping them closed from use for any purpose, for a period of two months; and from the judgment, the defendant has appealed.

A demurrer to the petition was overruled, and upon that it is urged here that the petition stated no cause of action in equity, in that there was no allegation that irreparable loss to property rights would ensue, if the alleged nuisance was not abated. It was not necessary that the petition should so state. State ex rel. v. Canty, 207 Mo. 439, 105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 Am. St. Rep. 393, 13 Ann. Cas. 787. The petition pleaded fully the facts showing the nature of the business carried on by the defendant, and the use of the premises, as constituting what was declared by the act to be a nuisance, and charges the defendant with causing "large numbers of lewd, lascivious, immoral, and dangerous men and women to frequent said premises, and to congregate therein at all hours of the day and night for immoral purposes," which, it is alleged "renders said place and premises dangerous to the peace, safety, good morals, and health of the public." In State ex rel. v. Woolfolk, 269 Mo. cited by appellant, it is said (loc. cit. 395, 190 S. W. 878):

"The power of equity to enjoin the doing of acts threatening irreparable injury to property rights or which would constitute a public nuisance, is inherent and has been exercised, both in England and America, by courts of chancery since their evolution as a distinct tribunal, nor can this power be devested because the performance of such acts may be a violation of the criminal law. On the other hand, a court of equity is powerless to enjoin the commission of any crime not violative of property rights nor involving the creation of a public nuisance, for the reason that it has no jurisdiction to enforce the criminal law nor to prevent the performance of any act of a criminal nature which does not necessarily prejudice private or public rights subject to its jurisdiction and control."

There is nothing said to the contrary in Harelson v. Tyler, 281 Mo. 383, 219 S. W. 908, which was a case involving private interests only, and which is also cited by defendant upon this point.

Objection is further made that, while the petition stated that the plaintiff had no adequate remedy at law, the facts disclose that there was an adequate remedy at law, by prosecution under a criminal statute. This objection is made upon and in connection with the overruling of defendant's motion to require the petition to be made more definite and certain in respect of the reasons why the plaintiff had no adequate remedy at law. But, this is a case wherein the acts constituting the nuisance to be abated are defined by the law; the remedy is expressly authorized by the same law; and by the same law, the court is vested with jurisdiction to apply the remedy. The fact that the acts of defendant and her uses of the property as charged constituted both a crime and a nuisance did not divest the court of jurisdiction. State ex rel. v. Canty, 207 Mo. 459, 105 S. W. 1078, 15 L. R. A. (N. S.) 747, 123 Am. St. Rep. 393, 13 Ann. Cas. 787; State ex rel. v. Lamb, 237 Mo. 437, 141 S. W. 665. The acts charged constituted not only a crime, but also a nuisance by express legislative enactment, and the facts charged were such as constituted a public nuisance under the common law. 14 Cyc. 484; Clementine v. State, 14 Mo. 112. It is urged that there is no evidence in the record to support the finding of facts, and the judgment rendered thereon.

The trial court made a finding of facts, which, after reciting the ownership and possession by defendant on the day charged and long prior thereto of certain real estate particularly described, further found:

"That there was at all of said times located on said property a two-story building, divided into rooms, used, occupied, furnished, and equipped as bedrooms, dance halls, reception halls, dining room, as described in the first amended petition filed herein; that the defendant had on June 27, 1921, and long prior thereto, unlawfully established, kept, permitted, and maintained on said premises in Kansas City, Jackson county, Mo., a bawdy or assignation house, and place of prostitution; that said defendant was, on said date, using said premises and property, furniture and equipment therein, for the purpose of keeping and harboring lewd, immoral, and lascivious women therein, and permitting and requiring said women so harbored therein, to receive and entertain men in rooms in said house and building for the purpose of unlawful sexual intercourse, assignation, and prostitution, and for immoral purposes and conduct; that said defendant was on said date, guilty of establishing, keeping, permitting, and maintaining a nuisance on said above described premises in Kansas City, Jackson county, Mo., and that said buildings, erection, house, and place of prostitution as established, kept, conducted, permitted, carried on, maintained, and continued as aforesaid are nuisances, and should be enjoined and abated, as prayed for in plaintiff's first amended petition."

The defendant testified: She had owned the property about 48 years. For about 40 years, or until in the year of 1913, she had used the property in conducting a bawdyhouse. She denied that, after 1913, she had done so. The evidence in the record as to the character of the house, its contents and furnishings, its inmates, and other circumstances was in the main given by certain police officials, who entered the house on the afternoon of June 24, 1921. The house is described as a large one, having a somewhat fancy Japanese front, and having a chain on the front door to prevent forcible entrance. Next to the entrance, on the right, were two large parlors furnished with numerous heavily upholstered chairs. Back of these was a large ballroom, with mirrors upon two sides extending from the floor to a height of seven or eight feet. In this room there was a painting of an almost nude woman with lights over the top of the frame, and there was a piano and also a Victrola in the room. The dining room was large, and with a table capable of seating 20 or 25 persons. In the kitchen was an icebox about 6 or 8 feet in height and width by four feet deep. In this was found several cases of dealcoholized Budweiser and dealcoholized Virginia Dare wine. In the defendant's room was found several whisky glasses, and a bottle containing a small quantity of whisky. There were several bedrooms on the first floor, and 12 or 15 bedrooms on the second floor, each containing a bed completely furnished. Each room had a wardrobe, but most of these contained no clothes. Upon the wall in each was an oscillating electric fan. Upon the washstands in each of the rooms were found bottles containing perfume, or disinfectants, lysol or the like. The house was not in a residence district, and did not have the appearance of an ordinary home. When the officers entered, about 3 o'clock in the afternoon, they found there, besides the defendant, seven or eight white women, one white man, one colored man, and two colored women. Three girls were found in a telephone booth, the door of which was locked. A colored maid had the key. One girl was found under a bed. One was found out on the roof about half an hour after the entrance of the officers. She had escaped through the bathroom window. She was the only one dressed in street clothes. All of the others wore kimonos, or silk robes, highly colored and flowered, and all of these girls are described as being "all painted and powdered up." One witness testified as follows:

"When you got upstairs, what did you find up there? A. Found several girls in the rooms with silk garments on and different colors.

"Q. Bright? A. Bright colors, yes, and in one room we found a man and woman. This man was on the bed in his B. V. D.'s and this girl didn't have anything on but a teddybear."

Another witness testified:

"I went in the rear room and there was a girl in there and a man by the name of Wright, I believe. The girl was all naked except—what do you call them—teddybears. The man practically had his pants on when I got in there. He had a chance to dress."

The testimony of the first of these witnesses was that, when he started to go into the room where the man and woman were found, the defendant took hold of him and attempted to prevent him from going into that room. The defendant denied this. There was testimony that, several times while the officers were in the house, there were knocks at the front door, and each time the defendant called out, "The officers are here." The defendant in her testimony explained the presence of the women in her house by saying that they were there at a card party given by a young woman who lived with her. She admitted that several of these women...