260 Mo. 613 | Mo. | 1914
Lead Opinion
— This is an original proceeding— habeas corpus — fi}ed in this court by the petitioner, asking to be discharged from a sentence of ten days imprisonment in the county jail, imposed by the circuit court of Cole county, for the violation of a temporary injunction issued by it against her on the-day of--, 1913, “for setting up and keeping a common bawdyhouse” in Jefferson City, Missouri.
The facts are substantially as follows:
On July 19, 1913, the prosecuting attorney of Cole county filed in the office of the clerk of the circuit court thereof, an information charging the petitioner “with setting up and keeping a common bawdyhouse.”
This information was filed in vacation of the court, and the cause was tried at the July term, 1913, of the court, which resulted in a mistrial. At the November term thereof she was again tried and acquitted by a jnry.
During the interim of the mistrial and the acquittal the prosecuting attorney filed in said court a petition asking that the petitioner herein be enjoined from conducting a common bawdyhouse in said city.
Without notice to petitioner the circuit court granted a temporary injunction, as prayed, without bond, and set the case down for trial at the November term, some four months subsequent, but she had in the meantime been notified of the issuance of the temporary order.
At that term of court the petitioner filed a demurrer to the petition asking for the injunction, which was by the court overruled at the March term, 1914.
Thereupon the petitioner filed answer; but subsequently filed a motion'for a change of venue of the cause from Cole county, on account of the prejudice
Thereupon, a second motion in proper form for a change of venue was filed, which was also overruled.
In the meantime the prosecuting attorney had duly filed in court an application requesting that the petitioner herein be cited for contempt of court, for the alleged violation of the temporary injunction previously issued in the injunction case.
On March 21, 1914, the court took up the citation for contempt and after hearing much evidence pro and con regarding the said violation of the temporary injunction, took the case under advisement until the 30th, and then found her guilty, and sentenced her to im-prisonmént in the county jail for ten days, and ordered the issuance of a committment, etc., which the sheriff proceeded to execute, when the petition for the writ in this case was applied for and issued, under which the marshall of this court released her from custody on bond, etc.
I. Counsel for respondent raise a question as to whether or not the bill of. exceptions was properly and timely filed.
Without going into that question I will state that in my individual opinion it was neither properly nor timely filed to preserve the questions attempted to be here presented thereby.
Counsel for respondent rely not only upon the case just cited, but also upon the case of State ex rel. v. Lamb, 237 Mo. 437, as authorities supporting their position in this case. They are not in point.
By an examination of both of those cases it will be seen that it was alleged and proven according to the majority opinion of the court, that not only a crime was being committed, as here, but also that the business complained of was so vile, open, notorious and vicious, that bad and dangerous men, in large numbers, were attracted thereto ;■ even criminals .were constantly congregated there, to the great detriment of the peace and safety of the community. In other words, those cases hold that a public nuisance, even though a crime, may be enjoined by a court of equity, though having no criminal jurisdiction, not because of the crime, but because of its inherent and constitutional authority to abate such nuisances.
There is no doubt but what a court of equity has this power, and it should be exercised freely whenever the exigency of the case demands, yet it should not invade the province of the criminal courts of the country, which must try criminals with the assistance of a jury, according to the Constitution and laws of this State,' and country generally.
The differentiation of this case from those is, that while all crimes are nuisances, yet they are not necessarily public nuisances. A court of equity may abate the latter, but the courts of law only can properly punish the former. Some of the States have enacted statutes conferring jurisdiction upon courts of equity in both, classes of cases, but this is not one of them. It still preserves the right of one charged with this class
Great pains'were taken in the case of State ex rel. v. Canty, supra, to point ont and distinguish the difference between these two classes of cases, and after further consideration I am unable to make that demarcation any plainer by anything I might here add.
A court of equity having no jurisdiction over the subject-matter of this cause, it necessarily follows, under the laws of this State, that the circuit court of Cole county had no authority to try and imprison the petitioner for the crime stated in the petition for the injunction. [State ex rel. v. Williams, 221 Mo. 227.]
If we are correct in this view of the law of the case, then the circuit court of Cole county sitting in eqnity, had no jurisdiction to enjoin the petitioner from committing the crime, of keeping a common bawdyhouse. That crime, if the petitioner is guilty of it, can be promptly and adequately punished under the criminal laws of the State, which were enacted expressly for that purpose, and there is, therefore, no necessity to resort to the extraordinary powers of a court of equity to suppress such a well-known and common crime.
Concurrence Opinion
CONCURRING OPINION.
— I concur in the conclusions reached by my learned brother Woodson, for the reason that in its suit against the petitioner the State is seeking to substitute the equity practice for the criminal law —a thing which the Constitution does not permit. A party whose property is being injured or destroyed by the criminal acts of another may enjoin such criminal acts, notwithstanding to do so amounts to enjoining the commission of a crime. [State ex rel. v. Schweickardt, 109 Mo. 496; State ex rel. v. Feitz, 174 Mo. App. 456.] Nevertheless it is not the theory of our organic law that the liberty of even the humblest citizen may be taken- away without a compliance with section 12, article 2, Constitution of Missouri, which ordains that all prosecutions for felonies and misdemeanors shall be by indictment or information; in which the accused shall be entitled to a trial by jury. [Sec. 28, art. 2, Constitution of Missouri.] In such trial the accused has the right to meet the witnesses against him “face to face.” [Section 22, art. 2, Constitution of Missouri.] This last clause of our organic law means that witnesses having personal knowledge tending to prove defendant’s guilt must confront him in court, and a conviction cannot stand upon the evidence of witnesses who have only heard rumors of defendant’s guilt. A mere rumor has no face, and cannot be “confronted” by anybody within the purview of our Constitution. [State v. Wellman, 253 Mo 302, l. c. 315.]
Concurrence Opinion
SEPARATE CONCURRING OPINION.
— I concur in the result reached by our brother Woodson in this case, but am not certain that I follow all of his reasoning. That my position may not be misunderstood I prefer to state it in my own way. The bill in equity involved in this case is' one which simply charged the defendant therein, the petitioner herein, with ‘ ‘ setting up and keeping a common bawdyhouse in Jefferson City, Missouri.” Upon this petition the temporary injunction was granted, and for the violation of which petitioner was deprived of her liberty. To my mind the trouble with this petition is that it states no cause, of equitable cognizance, but as I see it, not for the reasons stated by my brother.
I adhere strictly to the rule announced in State ex rel. v. Canty, 207 Mo. 439, and State ex rel. v. Lamb, 237 Mo. 437. I do not understand those eases to say that a court of equity will enjoin a crime, but they do announce the doctrine that when a given state of facts shows a public nuisance, then a court of equity will enjoin the doing of the acts which make up and constitute the public nuisance, although such acts or some of them may within themselves be crimes.
Now at common law the mere maintenance of a bawdyhouse was a public nuisance. Thus in 14 Cyc. 484 it is said: “A bawdyhouse was a public nuisance at common law, because it drew together lewd and debauched persons, thus tending to disturb the peace and 'to increase immorality among the people.”
By statute it has been made a crime, but the making of it a crime has not destroyed its character as a public nuisance, and therefore the jurisdiction of equity over it as a public nuisance. At the instance of the
But all this does not help- the State in this case. The petition for equitable relief should have averred in direct terms that the defendant was maintaining a public nuisance, but the term “public nuisance” is not found therein. On the other hand the criminal name for the act is used throughout. It may appear to be a refinement to say, that in law the keeping of a bawdy-house is a public nuisance, and yet say that a petition in equity which says the defendant is keeping a bawdy-house does not charge her with maintaining a public nuisance. But when we consider the fact that equity can only také hold of the subject upon the theory of there being a public nuisance, it is clear that the charge in the bill should specifically aver a public nuisance. This of course should be followed by specifications. The bill in this case, upon which the temporary injunction was granted,- does not so charge, and therefore stated no cause in equity.
