The State v. McLaughlin

• Decision Date: 12 February 1901
• Parties: THE STATE v. McLAUGHLIN, Appellant
• Court: Missouri Supreme Court

60 S.W. 1075

160 Mo. 33

THE STATE v. McLAUGHLIN, Appellant

Supreme Court of Missouri, Second Division

February 12, 1901

Appeal from Greene Criminal Court. -- Hon. C. B. McAfee, Judge.

Reversed and remanded.

Wear & McGregor for appellant.

(1) Instruction 2 does not declare the law properly, since it makes the defendant the keeper of a bawdy house if women boarded with her and paid defendant a part of the money received by them from men for sexual intercourse whether the defendant had knowledge or not of their conduct with men; or had knowledge of how and for what purpose the money was obtained. (2) The indictment is too indefinite, and does not sufficiently notify defendant as to what she is to defend against. The house upon which the sign is alleged to have been painted should have been described or located. State v. Wacker, 16 Mo.App. 417. And should be sufficiently definite to put the defendant in possession of the charge for which he is held to answer. State v. Rochforde, 52 Mo. 199. Some description of the place affected or acted upon is necessary in felonies. An indictment for keeping a ferry without license must specify upon what stream or river the ferry was kept. Wheat v. State, 6 Mo. 455; State v. Hogan, 31 Mo. 340; State v. Leedy, 95 Mo 76; State v. Welch, 28 Mo. 600; State v Kroeger, 47 Mo. 530; State v. Maupin, 57 Mo 205; State v. Jones, 68 Mo. 197; St. Louis v. Fitz, 53 Mo. 582; State v. Fisher, 58 Mo. 256. In all prosecutions for felonies, everything constituting the offense must be pleaded with certainty and clearness; nothing must be left to be implied. State v. Rector, 126 Mo. 328; State v. Evans, 128 Mo. 406; State v. McGinnis, 126 Mo. 564. It being necessary to aver the names of persons deceived, the indictment does come within the rule, "that in statutory offenses every essential fact constituting the offense should be averred." State v. Kirby, 115 Mo. 440; State v. Gabriel, 88 Mo. 631.

Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.

(1) Instruction 2, though perhaps somewhat incomplete because of its failure to state that to authorize a conviction defendant must have known of the conduct of the inmates and that the money paid by them to her was accepted by her with the knowledge as to how it was obtained, yet that omission in the instruction was fully supplied and cured by the third instruction given on behalf of the defendant. The two instructions are in no respect inconsistent or contradictory. (2) (a) The indictment sufficiently apprises the defendant of what house she is charged with displaying the sign on, in that it describes it as the house occupied by Lib McLaughlin and by her at a specific time. (b) It was not necessary for the indictment to aver that any particular person was deceived or inveigled into the house, nor indeed is it necessary that any person ever was so deceived; the offense under the statute consists in displaying the sign of an honest business on a bawdy house so as to make it possible for decent people to be inveigled in.

GANTT, J. Sherwood, P. J., and Burgess, J., concur.

OPINION

GANTT, J.

The defendant was indicted in the criminal court of Greene county for a violation of section 2201, Revised Statutes 1899. She was duly arraigned, and pleaded not guilty. Upon a trial she was convicted and sentenced to two years' imprisonment in the penitentiary.

The indictment, omitting caption, was as follows:

"The grand jurors of the State of Missouri, impaneled, sworn and charged to inquire within and for the body of Greene county, upon their oath present, that Mrs. Mary McLaughlin and Lib McLaughlin, late of the county and State aforesaid on the day of July, A. D., 1899, at the county of Greene and State of Missouri, being then and there the joint keepers and persons in charge of a house and building at said time ordinarily used as a common assignation house and common bawdy house, did feloniously expose and display, and cause to be exposed and displayed and knowingly permit to be exposed and displayed, upon the outer wall of said house and building, a certain painted and printed announcement and sign of an honest occupation and business, which sign and announcement is as follows, to-wit, 'Boarding,' by which said announcement and sign any decent person may and might be deceived and inveigled into the said infamous house and building, the honest occupation and business displayed by said announcement and sign being that of boardinghouse keeper. Contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State."

There was evidence tending to prove that the defendant kept a boarding house in the city of Springfield, and that two bawds boarded with her and plied their vocation, with her knowledge. This the defendant stoutly denied, and proved by other witnesses that she kept a reputable boarding house, and that the two women who testified against her had threatened to injure her all they could.

The court, over defendant's objection and exceptions, instructed the jury as follows:

"1. You are instructed that if you believe from the evidence that the defendant, Mrs. Mary McLaughlin, at any time within three years next before the finding of this indictment, at the county of Greene and State of Missouri, was the keeper or the person in charge of a certain house and that said house was at the time ordinarily used as a common assignation house or common bawdy house, and that said defendant did expose or display or cause to be exposed or displayed or knowingly permit to be exposed or displayed upon the outer wall of such house, any painted, printed or written announcement or sign of any honest occupation or business, to-wit, 'Boarding' or 'Boarding and Lodging,' whereby any decent person may be deceived or inveigled into such house so ordinarily used as a common bawdy house or common assignation house, you will find the defendant, Mrs. Mary McLaughlin, guilty as charged in the indictment, and assess her punishment at imprisonment in the penitentiary for a term of not less than two years or more than ten years.

"2. You are instructed that if you believe from the evidence that the defendant, Mrs. Mary McLaughlin, was the keeper of a certain house on Campbell street in Springfield, Missouri, and that while she was such keeper, one or more women boarded with her and received men in said house for the purpose of having sexual intercourse, and paid the defendant, Mrs. Mary McLaughlin, a certain part of the money received, then such house was a bawdy house.

"3. The court instructs the jury, that in passing upon the question as to whether the house of Mrs. McLaughlin, the defendant, was used for the purpose of a bawdy house, they should consider the character of the inmates and the persons resorting to the same.

"4. You are instructed that if you believe from the evidence that the defendant, Mrs. Mary McLaughlin, at any time within three years next before the finding of this indictment, acted as a mistress or having the care, use or management of a certain house on Campbell street in Springfield, Greene county, Missouri, and you further find that at such time said house was a bawdy house, then the defendant was the keeper of such bawdy house.

"5. You are instructed that it is no defense in this case that the defendant did in fact take boarders and give meals to the public, if you should further find that...