State v. Malloch

• Decision Date: 06 December 1916
• Docket Number: No. 19636.,19636.
• Citation: 269 Mo. 235,190 S.W. 266
• Parties: STATE v. MALLOCH.
• Court: Missouri Supreme Court

190 S.W. 266

269 Mo. 235

STATE v. MALLOCH.

No. 19636.

Supreme Court of Missouri, Division No. 2.

December 6, 1916.

Appeal from Criminal Court, Greene County; B. J. Thurman, Judge.

Fred Malloch was convicted of keeping a bawdyhouse and displaying thereon the sign of an honest occupation, and appeals. Reversed and remanded.

The defendant was convicted of keeping a bawdyhouse and displaying thereon the sign of an honest occupation contrary to R. S. 1909, § 4758. He has appealed.

The indictment charges that the defendant kept a bawdyhouse at the northwest corner of College and Market streets, in the city of Springfield, and that he displayed thereon the sign "Palace Hotel." It does not expressly charge that the defendant knew that the house was kept for such illegal purposes. That hotel was held by the defendant and his sister under a lease, they owning the furniture. The sister was away. Defendant with his family lived in the hotel, and he managed it. The main hotel at the northwest corner of the street crossing contains 24 rooms. Across the street from it is what is called the "annex" in the second story; it being connected with the main hotel by an overhead viaduct. There is ample evidence to the effect that for months before the indictment was returned the house was the resort of many persons for illicit sexual purposes, while at the same time it was extensively patronized as a hotel by people who were apparently unaware of the dual nature of the place. There was evidence tending to show that certain employés of the house managed the illegitimate part of the business without the knowledge or participation of the defendant, but there was evidence also to the contrary.

The state proved by an officer that two people were arrested and taken out of the annex for lewd conduct. To that evidence defendant objected on the ground that the annex was not covered by the indictment. The objection was overruled, and there was an exception.

The seventh instruction for the state is as follows:

"The court instructs the jury that the words `common bawdyhouse or common assignation house,' as used in the indictment and instructions, mean a house where lewd men and women meet and resort for the purpose of having illicit sexual intercourse; and in determining whether or not the house or building described in the indictment was so used, and whether or not the defendant had knowledge of such use, the jury may take into consideration the general bad reputation of the inmates of such house for virtue and chastity, if any such reputation has been shown to your satisfaction by the evidence."

The defendant asked an instruction marked A, as follows:

"You are instructed that the defendant, Fred Malloch, had the right to furnish lodging and home for the witnesses Mabel Dennison and Margaret Dale and other women, even though you may believe and find from the evidence that said women were prostitutes at the time and were plying their avocation as such. The only duty that devolved upon the said defendant was to not knowingly permit the said women to ply their avocation about his premises and in his hotel building."

It was refused. Another instruction asked by defendant was covered by the instruction given.

Roscoe C. Patterson and George Pepperdine, both of Springfield, for appellant. John T. Barker, Atty. Gen. (Kenneth C. Sears, Asst. Atty. Gen., of counsel), for the State.

ROY, C. (after stating the facts as above).

I. Appellant says that the indictment is insufficient for the reason that it does not charge that the defendant knew the character of the house at the time of the alleged offense.

Bishop's New Crim. Law (8th Ed.) § 1083, says:

"A bawdyhouse is any place, whether a habitation or temporary sojourn, kept open to the public, either generally or under restrictions, for licentious commerce between the sexes."

The law dictionaries, Bouvier, Wharton, and Black, say that a bawdyhouse is kept...