State v. Seba

• Decision Date: 28 January 1918
• Docket Number: No. 12655.,12655.
• Citation: 200 S.W. 300
• Parties: STATE v. SEBA.
• Court: Missouri Court of Appeals

200 S.W. 300

STATE v. SEBA.

No. 12655.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

"Not to be officially published."

Henry Seba was convicted of keeping a common bawdyhouse, and he appeals. Reversed.

A. K. Monroe, of Linn, B. L. Matthews, of St. Louis, and B. B. Baxter, of Owensville, for appellant. W. J. Ellis, of Hermann, for the State.

ELLISON, P. J.

Defendant was put on trial on an information drawn under section 4754, R. S. 1909, for keeping a common bawdyhouse. It is charged in the information that he did "unlawfully and willfully set up, keep and maintain a common bawdyhouse or brothel," etc.

There was testimony given by two or three witnesses to the effect that defendant on the evening of the 27th of May, 1916, had invited them to his house for the purpose of having illicit intercourse with a certain woman, saying, "We are going to have a girl there." There was further testimony that on that night several men and one woman were seen at defendant's house at 12 and 1 o'clock. One witness testified he saw the woman and defendant having "some kind of a scuffle on the porch," and he heard defendant "tell her she had promised to come there," that he saw some of the persons leave, and that others stayed until daylight.

The evidence totally failed to sustain the charge. All definitions of a "common bawdyhouse" are that it is a house resorted to and frequented by a lewd people of both sexes. The word "resort," or "frequented," mean a number of times, and proof of a single instance in which such character of persons were invited to, and attended, another's house for lewd purposes did not make out the offense. People v. Gastro, 75 Mich. 127, 133, 42 N. W. 937; Commonwealth v. Lambert, 12 Allen (Mass.) 177; State v. Garing, 75 Me. 591.

"The word `resorted' implies that the house was visited frequently by that class of persons." O'Brien v. People, 28 Mich. 213.

It is obvious that "a common bawdyhouse" is not proven by evidence that on a single occasion there was a gathering of lewd men and women at a certain house. Of course, proof of an isolated instance, connected with other proper evidence tending to show a common resort, will help out, but, standing alone, it does not make a case.

The foregoing makes it unnecessary to discuss the legal points made on the sufficiency of the affidavit and information.

The judgment will be reversed. All concur.