State v. Hoelcher

CAULFIELD, J. (after stating the facts). — The defendant assigns as error the action of the trial court in refusing to sustain a demurrer to the evidence. This objection is predicated upon the theory that the evidence was insufficient to establish either the character of the house as charged, or that the defendant was the keeper. "We are of the opinion that the demurrer was properly overruled. Evidence to establish the character of a bawdy house must in most cases be inferential from the nature of the case. [State v. Dudley, 56 Mo. App. 450.] Evidence that the inmates of the house were prostitutes strongly conduces to show that it was a bawdy house (State v. Barnard, 64 Mo. 260; State v. Horn, 83 Mo. App. 47; State v. Price, 115 Mo. App. 656, 92 S. W. 174); and with evidence of slight additional circumstances it will be sufficient to sustain a conviction. [State v. Horn, 83 Mo. App. 47; Ramey v. State, 39 Tex. Cr. R. 200, 45 S. W. 489.] Specific acts of bawdry in the house need not be shown. [2 Bishop’s New Crim. Proc. (4 Ed.), sec. 115'.] Here the evidence not only tends to show the lewd character of the women who visited and stayed at the house-boat and the frequent visits of men, but that the defendant had avowed to the marshal her purpose to run the place as a bawdy [355] house and later practically confessed to the police officer that she was doing so, and asserted she would continue to do so. This we deem sufficient to establish not only the character of the house as a bawdy house but that she was the keeper of it. It may be accepted, as defendant contends, that where the husband lives in the house with his wife, he, and not she, is presumed, to be in control of it and liable for its unlawful use, though as to this particular offense there is respectable authority to the contrary. [1 "McLain on Crim. Law, Sec. 148.] But we regard this presumption as being in.the same category as is the presumption that that which the wife does in her husband’s presence, she does because of his coercion, and like it to be held to be only prima facie and rebuttable. [See State v. Ma Foo, 110 Mo. 7; State v. Baker, 19 S. W. 222.] Such a presumption is said to be regarded in most of the later cases as something to be easily rebutted, “especially in that numerous class of cases which relate to the illegal sale of liquors, a business in which married women frequently engage understandingly. ” [Schouler’s Domestic Relations (5> Ed.), Sec. 50'.] This theory of easy rebuttal should also be held especially applicable to cases like the present one, “for,” says another learned writer, ‘ ‘this is an offense as to the government of the house in which the wife has a principal share; and also such an offense as may generally be presumed to be managed by the intrigues of the sex.” [1 Russell on Crimes, • p. 151.] Now in this ease, in the absence of any evidence tending to show actual control, direction, participation or coercion on the part of the husband, we are of the opinion that the confession and defiant declarations of the defendant to the marshal and the police officer, together with the fact that the husband did not spend all of his time at the house-boat, and did in fact spend most of it at another residence, were facts sufficient to justify the jury in finding against [356] the presumption invoked by the defendant. [As to this, see Commonwealth v. Tryon, 99 Mass. 442.] We have carefully examined the instructions and find that those given covered the whole law of the case and embraced all that was necessary for the jury to know in order to a proper discharge of their duties when considering their verdict. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.