State v. Maher

• Decision Date: 06 February 1939
• Docket Number: No. 5994.,5994.
• Citation: 124 S.W.2d 679
• Parties: STATE OF MISSOURI, APPELLANT v. ARTHUR MAHER, RESPONDENT.
• Court: Missouri Court of Appeals

124 S.W.2d 679

STATE OF MISSOURI, APPELLANT v.ARTHUR MAHER, RESPONDENT.

No. 5994.

In the Springfield Court of Appeals. Missouri.

February 6, 1939.

Appeal from the Circuit Court of Jasper County.— Hon. Wilbur J. Owen, Judge.

AFFIRMED.

Roy McKittrick,Attorney-General, Wm. Orr Sawyers and Arthur O'Keefe, Assistant Attorneys-General, for appellant.

Emerson Foulke and A.E. Spencer, Sr., for respondent.

FULBRIGHT, J.

On March 30, 1937, a grand jury presented in open court of Jasper County, division No. 1, an indictment charging the defendant with official misconduct and negligence in office.On motion of defendant a change of venue was granted to division No. 2 of said circuit court.From a judgment sustaining a motion to quash the indictmentthe State appealed to the Supreme Court where, upon motion of defendant, the cause was transferred to this court.

The indictment, omitting the formal parts, is as follows:

"The Grand Jurors of the State of Missouri, within and for the body of the County of Jasper, now here in Court, duly impaneled, sworn and charged, upon their oath present, That in the County of Jasper, aforesaid, and on the first day of February in the year of one thousand nine hundred and thirty-seven (and for a long time prior thereto), one Arthur Maher was a public officer and a person holding trust and appointment, within and for the county of Jasper and State of Missouri, to-wit: The Mayor of the city of Joplin, in charge and control of the department of Public Safety, duly elected, appointed, enrolled and employed as provided by law, assigned and detailed to, and the principal officer of public safety, and in command of that portion of territory in Jasper County, Missouri, known and designated as the city of Joplin, for the purpose of public safety in city government; that the said Arthur Maher was then and there, (and for a long time had been) by virtue of the laws of the State of Missouri, a public officer.

"That he, the said Arthur Maher was then and there, (and for a long time prior thereto had been) duly elected, appointed and designated as such chief mayor for the city of Joplin, Missouri, 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 as chief officer of public safety, and in command, control, supervision and direction, for the purpose of public safety in city government and to enable subordinate police officers to perform the duties imposed upon them by law, of the said city of Joplin, Missouri.

"That under and by virtue of the laws of the State of Missouri, it was the official duty of the said mayor of Joplin, Missouri, and every member of said police force of said city, appointed, enrolled and employed, as aforesaid, and the official duty of him, the said Arthur Maher, as such chief officer of the department of public safety, and as such public safety officer, and as such municipal corporation officer, at all times of the day and night, within the boundaries of said city, to preserve the public safety, to prevent crime and cause to be arrested offenders of the criminal law, to prevent and remove dangerous nuisances on all streets and highways and other places, and to see that all laws of the State of Missouri, relating to gambling devices, gaming houses, bawdy houses, brothels, vagrant and disorderly persons, were enforced.

"That he, the said Arthur Maher, as such chief safety officer, then and there, (and for a long time prior thereto), had under his command and subject to his orders, numerous subordinate police officers, members of said police department, and was vested with adequate power and authority as such mayor in command of the department of public safety in Joplin, Missouri, and as such public and State officer, for the proper and efficient performance of the duty aforesaid.

"That in the said County of Jasper, and on the first day of February, in the year one thousand nine hundred thirty-seven (and for a long time prior thereto), and within the municipal corporation's territorial limits of Joplin, Missouri the said Arthur Maher, as Mayor, aforesaid, there were and had been, for a long time continuously, publicly, flagrantly, openly and notoriously set up, kept and maintained certain common gaming houses and gambling devices, 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 common gaming houses, and gambling devices were set up and kept in said houses, and divers common gamblers, vagrants and disorderly persons resorted to said gaming houses for the purpose of certain prohibited and illicit gambling, consisting of book-making and pool selling commonly so-called, whereby wagers on horse racing were registered, and divers common gamblers, vagrants, and disarderly persons resorted to said houses for the purpose of playing on gambling devices therein set up and kept, to-wit: Slot machines, commonly recognized as mechanical devices, into which money and chips were played, and crap tables, commonly so-called, upon which dice, money and chips were thrown and used, and poker and blackjack tables upon which cards, money and chips were used, all of which gambling devices were adapted, devised and designed for the purpose of playing games of chance for money; which said gaming houses and gambling devices enticed and permitted divers persons to bet and play in said gaming houses, and at and upon and by means of said gambling tables and gambling devices; which said common gaming houses and gambling devices were so set up and kept and maintained in the said city of Joplin, Missouri, in certain buildings situated upon certain streets and highways of said city, known and designated as Main Street near the intersection of Seventh Street, the exact numerous street locations being to this Grand Jury unknown.

"That at the County of Jasper, and on said first day of February, in the year one thousand nine hundred thirty-seven (and for a long time prior thereto), and within the municipal corporation's territorial limits of Joplin, Missouri, the said Arthur Maher, as Mayor, as aforesaid, there were and had been for a long time, continuously, publicly, flagrantly, openly and notoriously set up, kept and maintained certain common bawdy houses and brothels, and that then and there land for a long time prior thereto), unlawful 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 resides in said houses for the purposes of common prostitution and bawdry, and solicited men for the purpose of sexual intercourse therefrom and in front thereof; which said common bawdy houses and brothels were so set up, kept and maintained, in the said city of Joplin, in certain buildings situated upon certain streets and highways of said city, known and designated as Pennsylvania Avenue, near the intersection of Third Street, the exact numerous street locations being unknown to this Grand Jury.

"That it was the official duty, as aforesaid, of the said Arthur Maher, as Mayor, as aforesaid, in command of the department of public safety in the city of Joplin, Missouri, as aforesaid, as such safety officer and public officer, as aforesaid, to cause to be arrested all persons known to him who in his presence were seen violating the criminal laws of the State of Missouri(the true names of said persons being unknown to this Grand Jury), for violation of the law and for crime in so setting up, keeping and maintaining said gambling devices, common gaming houses, common bawdy houses and brothels, as aforesaid, in said city of Joplin, Missouri, that they might be dealt with according to law, and to prevent said violation of law and crime, and to prevent and remove such gambling devices, common gaming houses, common bawdy houses and brothels, as common nuisances, and to arrest and cause to be arrested said gamblers, common prostitutes, bawds and disorderly persons, as vagrants.

"That nevertheless, the said Arthur Maher, being such Mayor, as aforesaid, and commanding the department of public safety in the city of Joplin, Missouri, as aforesaid, and being such safety officer and public officer, as aforesaid, and then...