State v. Kornegger

Full title: STATE OF MISSOURI, Respondent, v. MELVIN DONAHEW KORNEGGER, Appellant

Court: Supreme Court of Missouri, Division One

Date published: Mar 9, 1953

255 S.W.2d 765 (Mo. 1953)

255 S.W.2d 765

Opinion

No. 43326.

February 9, 1953. Motion for Rehearing or to Transfer to Banc Overruled, March 9, 1953.

SUMMARY OF DECISION

Defendant's conviction of molesting a minor is affirmed. The statute is sufficiently definite. The issue of a defective title was not preserved for review. Evidence that defendant repeated the offense two days later was admissible. The trial judge properly suggested that a portion of the testimony of the prosecutrix be clarified by further questions. Instruction No. 2 was not erroneous, and the assignments against said instruction were insufficient. Instructions on lewd and lascivious conduct and upon common assault were not required. The trial was conducted with scrupulous fairness.

HEADNOTES

1. CRIMINAL LAW: Child Molestation: Statute Sufficiently Definite. Sec. 563.160 RSMo 1949 is sufficiently clear and definite.

2. CRIMINAL LAW: Child Molestation: Issue Not Preserved. The issue of whether the statute has a defective title has not been preserved for review.

3. CRIMINAL LAW: Evidence: Child Molestation: Repeated Offense Admissible. The fact that defendant repeated the offense two days later was admissible, as cases of this character afford an exception to the general rule that proof of the commission of a separate and independent crime by the accused is not admissible.

4. CRIMINAL LAW: Child Molestation: Clarification of Testimony of Prosecuting Witness: Suggestion of Trial Judge Proper. It was proper for the trial judge to suggest to the state's attorney that a portion of the testimony of the prosecutrix be clarified by asking her further questions.

5. CRIMINAL LAW: Child Molestation: Issue Not Preserved: Instruction Not Erroneous. The assignments in the motion for new trial against Instruction No. 2 were insufficient, but the instruction was not erroneous.

6. CRIMINAL LAW: Child Molestation: Instructions on Other Offenses Not Required. Failure to instruct on lewd and lascivious conduct and upon common assault was not error.

7. CRIMINAL LAW: Child Molestation: Fair Trial. The trial was conducted with the scrupulous fairness required in a prosecution upon a charge for which there is a human abhorrence.

Appeal from Circuit Court of City of St. Louis; Hon. David A. McMullan, Judge.

AFFIRMED.

Morris A. Shenker for appellant.

(1) The court erred in failing to sustain the defendant's motion to quash the information herein, for the reason that the statute upon which the information was based is unconstitutional. Diemer v. Weiss, 122 S.W.2d 922; Ex parte Hunn, 207 S.W.2d 468; United States v. L. Cohen Grocer Co., 264 F. 218; Betz v. Columbia Tel. Co., 24 S.W.2d 224; City of Washington v. Washington Oil Co., 346 Mo. 1183, 145 S.W.2d 366; City of Hannibal v. Minor, 224 S.W.2d 598; Dahlin v. Missouri Commission for the Blind, 262 S.W. 420; Ex parte Taft, 225 S.W. 457; Hanson v. Norton, 103 S.W.2d 1; Holder v. Elms Hotel Co., 92 S.W.2d 620; Missouri Constitution of 1945, Art. I, Sec. 18 (a); Missouri Constitution of 1945, Art. III, Sec. 23; State ex rel. Judah v. Fort, 210 Mo. 512. (2) The court erred in permitting evidence in testimony and comment by the Assistant Circuit Attorney and by various witnesses relative to alleged independent and subsequent crimes of the defendant, which evidence and comment were immaterial to the charge on which the defendant was being tried, and which therefore operated to his prejudice. State v. Palmberg, 199 Mo. 233, 97 S.W. 566; State v. Jackson, 220 S.W.2d 779; State v. Bullington, 274 S.W. 18; Missouri Constitution of 1945, Art. I, Sec. 18(a); State v. Amende, 338 Mo. 717, 92 S.W.2d 106; State v. Arnold, 267 Mo. 33, 183 S.W. 289; State v. Bowman, 272 Mo. 491; State v. Gentry, 320 Mo. 389, 8 S.W.2d 20; State v. Klink, 254 S.W.2d 650; State v. Lebo, 339 Mo. 960, 98 S.W.2d 695; State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956. (3) The court erred in failing to sustain the objection of the defendant when at the conclusion of the testimony of the prosecutrix the court suggested to the prosecutor that he recall the witness and attempt to prove other matters which had not been testified to by the witness. People v. De Martino, 299 N.Y.S. 781; State v. Troup, 22 S.W.2d 787; State v. Bird, 214 S.W.2d 38; United States v. Domres 142 F.2d 477; Williams v. United States, 93 F.2d 685. (4) The court erred in giving and reading Instruction 2 to the jury for the reason that said instruction improperly stated the law, constituted a comment upon the evidence, and urged the jury to return a verdict of conviction in this cause. Secs. 546.070, 546.380, RSMo 1949; State v. Johnson, 234 S.W. 794; State v. Farr, 255 S.W. 1069; State v. Brown, 193 S.W. 902; State v. Dillihunty, 18 Mo. 331; State v. Fleetwood, 127 S.W. 934; State v. Griggs, 236 S.W.2d 588; State v. Stubblefield, 239 Mo. 526, 144 S.W. 404. (5) The court erred in failing to instruct the jury on all of the law applicable to this case, and particularly with reference to the law of lewd and lascivious conduct and the law of common assault. State v. Famber, 214 S.W.2d 40; State v. Hoag, 232 Mo. 308, 134 S.W. 509; State v. Mason, 322 Mo. 194, 14 S.W.2d 611; Secs. 559.220, 563.150, RSMo 1949; State v. Johnson, 6 S.W.2d 898; State v. Lackey, 230 Mo. 707, 132 S.W. 602; State v. Littlejohn, 356 Mo. 1052, 204 S.W.2d 750; State v. Matsinger, 180 S.W. 85. (6) The court erred in failing to sustain defendant's objections and requests for a mistrial made when comment was made and testimony was given relative to matters beyond the scope of and broader than the charges in the information in this cause. State v. Burgess, 268 Mo. 407, 188 S.W. 135; State v. Spinks, 125 S.W.2d 60; State v. Allen, 251 S.W.2d 659; State v. Miller, 300 S.W. 765; State v. Richards, 334 Mo. 485, 67 S.W.2d 58; State v. Spray, 174 Mo. 569, 74 S.W. 846; State v. Wynne, 353 Mo. 276, 182 S.W.2d 294.

J.E. Taylor, Attorney General, and E.L. Redman, Assistant Attorney General, for respondent.

(1) Appellant in his Assignments of Error and Points Authorities makes six assignments of error. All other assignments of error in appellant's motion for new trial are abandoned. State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949; State v. Huett, 340 Mo. 934, 104 S.W.2d 252; State v. Medlin, 355 Mo. 564, 197 S.W.2d 626; State v. Purl, 183 S.W.2d 903; State v. Mason, 339 Mo. 874, 98 971 S.W.2d 574; State v. Lofton, 1 S.W.2d 830. (2) The challenge made by appellant in his brief as to the constitutionality of the statute on which the information is based was not properly and adequately raised and preserved in the trial court and is not for review. Appellant may not challenge the constitutionality of a statute on grounds assigned for the first time in the appellate court. The grounds relied upon must be raised by motion to quash or demurrer to information, and said specific grounds carried over into the motion for a new trial. State v. Swift Co., 270 Mo. 694, 195 S.W. 996; State v. Klink, 254 S.W.2d 650; State v. Knight, 356 Mo. 1233, 206 S.W.2d 330; State v. Gibson, 300 S.W. 1106; State v. Nordseick, 295 S.W. 808. (3) To raise the constitutionality question, the provisions of the constitution relied on in appellant's brief in this court must be specifically set out and referred to, both in the motion to quash the information and in the motion for a new trial. A general specification that the statute is unconstitutional or is unconstitutional on some other ground than that assigned in the brief is insufficient to preserve the question for review. State v. Klink, 254 S.W.2d 650; State v. Wilson, 233 S.W.2d 686; State v. Lofton, 1 S.W.2d 830; State v. Richardson, 267 S.W. 841; State v. Day-Brite Lighting, Inc., 240 S.W.2d 886. (4) Where appellant failed to except to the action of the court in overruling his motion to quash the information and failed to object to further proceeding in the cause, the question is waived. State v. Gibson, 300 S.W. 1106; State v. Nordseick, 295 S.W. 808; State v. Brown, 304 Mo. 78, 262 S.W. 710. (5) Section 563.160 Revised Statutes of Missouri, 1949, is constitutional. It is not subject to the challenge that it violates the provisions of Article 1, Section 18a and/or Article 3, Section 23 Missouri Constitution 1945. Every legislative act is presumed constitutional and will not be declared unconstitutional unless it is clearly so. State ex rel. Oliver v. Hunt, 247 S.W.2d 969; State v. Ward, 328 Mo. 658, 40 S.W.2d 1074. (6) Headings in revised statutes are merely designations for convenience. The title to the acts is set out in the bill. Sec. 3.050, RSMo 1949; State v. Maurer, 255 Mo. 152, 164 S.W. 551; Senate Bill 157, Laws 1949, p. 249; State v. Lawson, 352 Mo. 1168, 181 S.W.2d 508. (7) The title to Section 563.160 Revised Statutes of Missouri, 1949, contains but one subject which is clearly expressed in its title and is constitutional. Edwards v. Business Men's Assur. Co., 350 Mo. 666, 168 S.W.2d 82; State v. Ward, 328 Mo. 658, 40 S.W.2d 1074; Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708; State v. Mullinix, 301 Mo. 385, 257 S.W. 121; State v. Johnson, (Mo.), 55 S.W.2d 967; State v. Morgan, 112 Mo. 202, 20 S.W. 456; State v. Peyton, 234 Mo. 517, 137 S.W. 979. (8) The act by its terms is sufficient to inform appellant of the nature and cause of the accusation, and does not violate the provisions of Article 1, Section 18a, Missouri Constitution of 1945. State v. Dildine, 330 Mo. 756, 51 S.W.2d 1; State v. Hilton, 248 Mo. 522, 154 S.W. 729. (9) Appellant's Assignments II, III, IV, V and VI set out in his brief are not supported by the record and are not for review. The objections made in the trial court are too general, do not state any reason or ground, do not particularize the grounds and reasons for the objections and are insufficient to preserve anything for review. State v. Allison, 300 S.W. 1069; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; State v. Napoli, 44 S.W.2d 55. (10) Before an appellant can complain of a failure to discharge the jury, he should have requested the court to rebuke the state's attorney and instruct the jury to disregard the statements and argument and by his failure so to do has waived the errors claimed. State v. Napoli, 44 S.W.2d 55; State v. Cade, 326 Mo. 1132, 34 S.W.2d 82. (11) The assignments made in the Motion for New Trial concerning the errors relied upon do not comply with the provisions of Section 547.030 RSMo 1949, do not adequately point out the portion of the record and testimony objected to, do not particularize the reasons for said objections, and preserve nothing for review. State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077; State v. Tolson, 358 Mo. 419, 215 S.W.2d 438; State v. Brown, 165 S.W.2d 420; State v. Florian, 355 Mo. 1169, 200 S.W.2d 64; State v. Dobbins, 351 Mo. 796, 174 S.W.2d 171. (12) On a charge for annoying and molestation of female minor and in taking indecent and improper liberties with her, evidence of similar acts committed two days after is admissible particularly where at the time of the act charged appellant stated he would be back the next day. State v. King, 342 Mo. 975, 119 S.W.2d 277; State v. Tunnel, 296 S.W. 423; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; State v. Garrison, 342 Mo. 453, 116 S.W.2d 23; 22 C.J.S. sec. 691 U, pp. 1160-1170; State v. Johnson, 145 S.W.2d 468; State v. Craft, 334 Mo. 269, 126 S.W.2d 177; State v. Sherrill, 7 S.W.2d 725. (13) Trial court has large discretion concerning conduct of trial to promote justice, has discretion to suggest further proof in the cause and discretion to permit leading questions to a young child witness. State v. Tally, 22 S.W.2d 787; Daudt v. Teiret, 205 S.W. 222; 53 Am. Jur., sec. 34, p. 50; State v. Barnes, 325 Mo. 545, 29 S.W.2d 156; State v. Coffman, 360 Mo. 782, 230 S.W.2d 761; State v. Comer, 296 Mo. 1, 247 S.W. 179. (14) Instruction 2 is not subject to the criticism that it assumes facts, is a comment on the evidence and an incorrect statement of the law of the case. It sufficiently and correctly presented the constitutive elements of the crime to the jury. State v. Klink, 254 S.W.2d 650; State v. Lively, 311 Mo. 414, 279 S.W. 76; State v. Cohen, 100 S.W.2d 544; State v. Battles, 357 Mo. 1223, 212 S.W.2d 753; Sec. 563.160 RSMo 1949; State v. Reinke, 147 S.W.2d 464. (15) Instructions given covered the issues presented and covered all the law of the case. The issues of common assault or lewd and lascivious conduct were not in the case. State v. Klink, 254 S.W.2d 650; State v. Wolf, 211 Mo. App. 429, 244 S.W. 962; State v. Bird, 358 Mo. 284, 214 S.W.2d 38; State v. Coffman, 360 Mo. 782, 230 S.W.2d 761, 763; State v. Brown, 245 S.W.2d 866; Sec. 563.160, RSMo 1949. (16) Appellant's complaint that the court erred in failing to sustain his objections and requests for a mistrial made when comment was made and testimony was given relative to alleged matters beyond the scope of and broader than the charge in the information is without merit. See Points Authorities (12) supra; Sec. 563.160 RSMo 1949; State v. Jackson, 95 Mo. 623, 8 S.W. 749; State v. Johnson, 334 Mo. 10, 64 S.W.2d 655; State v. Pfeiffer, 267 Mo. 23, 183 S.W. 337. (17) The information is in proper form, follows the language of the statute and properly charges appellant with the crime of annoying, molesting, detaining and diverting a minor. Sec. 563.160 RSMo 1949; State v. Hedrick, 224 S.W.2d 546; State v. Pedigo, 190 Mo. App. 293, 176 S.W. 556. (18) The verdict is sufficient in form and substance and responsive to the issues and to the charge of molesting a minor as set out in the information. Sec. 563.160, RSMo 1949. (19) Appellant was properly given allocution and the judgment of the court was responsive to the verdict of the jury. Secs. 546.550, 546.560, 546.570, 546.580, RSMo 1949.

[767] CONKLING, J.

Under Section 563.160, RSMo 1949, the defendant, Melvin Donahew Kornegger, was tried and convicted of the offense of molestation of a certain named minor female child of seven years of age, by the taking of indecent and improper liberties with said minor. He was sentenced to four years' imprisonment in the state penitentiary. From that judgment and sentence he has appealed.

In this court defendant now contends that (1) his motion to quash the Information should have been sustained, (2) certain evidence was erroneously admitted, (3) the court erred in suggesting that a portion of the testimony be clarified by asking further questions of one witness, (4) Instruction No. 2 was reversibly erroneous, and (5) that the court erred in failing to instruct on the law of lewd and lascivious conduct, and the law of common assault. Defendant does not here contend that the facts of record as proved by the State are not sufficient to constitute an offense under the statute in question.

From the testimony the jury could have found that on April 17, 1951, the prosecutrix, then a seven year old girl, lived with her parents at 5019a Ulena Street in the City of St. Louis, Missouri; that while she and another child were at play on the sidewalk in the block down the street from her home, defendant stopped his automobile at the curb nearby and called the prosecutrix into his automobile; and that opening his trousers in front defendant exposed his person to prosecutrix and had the prosecutrix perform upon him the certain indecent and improper practices disclosed by the record, the legal sufficiency of which, to constitute an offense under the statute, the defendant does not here question;

Defendant told prosecutrix that his name was Don, and that he would return to that same place the next day. Prosecutrix then got out of defendant's car. Defendant then drove away in his automobile. No one knew who he was. Prosecutrix went home and told her mother what had happened, but could not tell anyone who it was that had so mistreated her. Defendant did not return the next day, but did return on the following day, April 19th, When defendant returned to the same place in the same block on April 19th, the prosecutrix again entered defendant's automobile. Defendant again exposed himself to the prosecutrix. The police came immediately and defendant was arrested and taken to the police station. He there made oral confession as to the above.

Appellant's first assignment of error contends that his motion to quash should have been sustained because the Information fails to state an offense under the laws of Missouri, and because the statute in question, Section 563.160, violates Section 2 of Article I of the Constitution.

The above contentions must be denied. This statute, enacted in 1949, provides that (1) if any person, in the presence of any minor shall indulge in any degrading, lewd, immoral or vicious habits or practices, or (2) shall take indecent or improper liberties with such minor, or (3) shall publicly expose his person to such minor in an obscene or indecent manner, or (4) shall by language, sign or touching said minor suggest or refer to any immoral, lewd, lascivious or indecent act, or (5) shall detain or divert any minor with intent to do any of the above acts, such person shall be considered as annoying and molesting said minor and be punished as therein provided. The instant Information charges that on April 17, 1951, in the presence of the named seven year old minor (prosecutrix) defendant took indecent and improper liberties with said minor by exposing to her his private parts and having her rub the same with her hand and did thus annoy and molest said minor, contrary to statute. It is, of course, true that the defendant in a criminal cause has a constitutional right to demand the nature and cause of the accusation against him, and a criminal statute must be sufficiently clear that there can be no doubt as to when such statute is being violated. But we think the statute in question is sufficiently clear and [768] definite in its terms and prohibitions. And it is our view that the Information states an offense under the statute. The statute is in nowise violative of any of the provisions of Section 2 Article I of the Constitution.

In his brief defendant has undertaken a discussion of whether the title of the Act in question complies with the requirements of Section 23 of Article III of the Constitution that the subject of a bill shall be clearly expressed in its title. But in neither his motion to quash the Information, nor in his motion for new trial has defendant preserved his right to have that question considered in this court upon this appeal.

Defendant next contends that the circuit court erred in permitting the statement and proof by the State that when the prosecutrix again entered defendant's automobile on April 19th, that the defendant "showed me the same thing over again", that is, that defendant again on that date and occasion exposed his private parts to prosecutrix. Defendant's contention is that the State was thus permitted to make proof of an independent crime as to which defendant was not then charged.

It may be well observed that just two days before, on April 17th, defendant told prosecutrix that he would return to the same place the next day; and that he then drove away in his automobile and neither the prosecutrix, nor anyone else, knew who he was or how to identify him. Defendant did return on April 19th, and he then again committed the identical offense with the identical little seven year old girl, at the identical place the defendant had appointed; and it was then defendant's arrest was effected and his identity established.

Defendant relies upon State v. Lebo, 339 Mo. 960, 98 S.W.2d 695, State v. Palmberg, 199 Mo. 233, 97 S.W. 566, and other similar cases which announce the general rule that proof of the commission of a separate and independent crime by the accused is usually not admissible in evidence upon the trial of a crime separately charged.

That rule, however, is limited by the certain following well-recognized exceptions. Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24. And similarly, the exception is often recognized in prosecutions for crimes involving sexual relations such as adultery, incest, sodomy, seduction, rape and lewdness. State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956, State v. King, 342 Mo. 975, 119 S.W.2d 277, State v. Henderson, 243 Mo. 503, 147 S.W. 480, State v. Scott, 172 Mo. 536, 72 S.W. 897. In 22 C.J.S., Section 691, page 1160, it is said: "In the case of crimes involving illicit sexual relations or acts, other acts of the same character may ordinarily be shown, not as proof of independent substantive offenses, but as corroborative evidence to show a disposition upon the part of the accused and as tending to support the specific offense for which he is being tried." See authorities there cited. See also, State v. Cason, Mo. Sup. 252 S.W. 688, and cases there cited. In State v. King, supra, we held: "In these cases (thereinabove cited) prior (and in some jurisdictions, subsequent) acts of the same kind between the accused and the prosecutrix may be proven as corroborative evidence."

Defendant argues that in State v. Leon Alexander Klink, 363 Mo. 907, 254 S.W.2d 650, this court ruled that intent is not a necessary element of the offense here charged. But we think that under the above stated exceptions, and under the instant circumstances, the above stated events which subsequently occurred on April 19 were clearly admissible to establish not only the identity of the defendant and a common scheme and plan as to this prosecutrix but also as "corroborative evidence to show a disposition upon the part of the accused and as tending to [769] support the specific offense" for which defendant was on trial. The facts and circumstances of record here clearly show a connection between the two offenses. They tend to establish that the person who committed the offense on the 19th of April, when defendant was arrested, must have committed the offense charged in the Information to have been committed on April 17th. The contention of defendant is without merit and must be denied.

Defendant next contends the court erred in suggesting to the State's attorney that a certain portion of the testimony of the prosecutrix be clarified by asking her further questions. We have carefully read the entire record. And we have re-examined with great care that portion of the record showing the incident of which complaint is here made. The trial judge conducted this trial with the utmost fairness and marked impartiality. He should have done just exactly that. The record shows that the suggestion of the trial judge that further questions be asked was only for clarification purposes, and none other, and was merely such a suggestion as might have been made by any juror who desired further light upon any fact issue of the trial. The entire incident was such, and was handled in such manner, that it cannot be said that the discretion of the trial judge in such circumstances was in anywise abused. The assignment of error is without merit and must be overruled.

It is next assigned as error in the defendant's brief that Instruction 2 improperly stated the law, commented upon the evidence, and urged the jury to return a verdict of conviction. In his motion for a new trial defendant complained that Instruction 2 was erroneous because it "improperly states the law and is not a complete or accurate statement of the law, and for the further reason that it is a comment on the evidence and urges and implores the jury to convict the defendant, and improperly leads the jury to believe that the court feels there is evidence which would justify a finding of guilty of child molestation." The assignment in defendant's motion for new trial is insufficient under the statute (Section 547.030) to preserve anything for our review, except possibly that the instruction is a comment on the evidence. And, as to that one thing, the motion for new trial does not "set forth in detail and particularity" wherein the instruction comments on the evidence and for that reason we should not consider it at all.

But we have nevertheless examined the instruction as to that complaint and find such assignment to be wholly without any merit whatever. Defendant's contentions as to Instruction No. 2 are overruled.

Defendant next contends that in this case, a prosecution under a special statute enacted for the protection of minors from the various things therein prohibited, the court erred in failing to instruct also upon lewd and lascivious conduct (Section 563.150) and upon common assault (Section 559.220).

But we are not persuaded to that view. This special statute was enacted for the quite plain purpose of protecting minors as a class from any depraved older person who might be inclined to take advantage of and mistreat minors by subjecting them to certain prohibited degrading sexual practices and situations which, if unchecked, inevitably lead children and youth into moral bankruptcy. Quite obviously the General Assembly considered the enactment of this statute to be vital to the public welfare of minors for a violation of the statute was made punishable as a felony. Under these circumstances the two misdemeanor offenses of lewd conduct and common assault do not merge into an offense under the instant statute. It is our conclusion that under these circumstances in a prosecution under this section, defendant is either guilty as charged or he is guilty of no offense at all. And we rule that the trial court did not err in failing to instruct on lewd and lascivious conduct, or upon common assault.

We are in entire accord with defendant's counsel that, "prosecutions upon a charge for which there is a human abhorrence must be conducted with scrupulous fairness so as to avoid adding other prejudice to that which the charge itself frequently produces." [770] We have carefully examined the entire record of this trial and find it free from any error. It abundantly appears that defendant was accorded a fair and impartial trial. His every right under the law was safeguarded and he was ably represented by his counsel.

We have examined the record proper. The Information, verdict and judgment are in form and are sufficient. The judgment is responsive. The defendant testified before the jury but upon all the facts and circumstances shown in evidence, the jury returned a verdict of guilty. The punishment the jury assessed is under the maximum fixed in the statute.

The judgment of the circuit court is affirmed. All concur.