Opinion
No. 42544.
May 12, 1952.
APPEAL FROM THE CIRCUIT COURT, JEFFERSON COUNTY, EDWARD T. EVERSOLE, J.
Samuel J. Kevrick, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., Will F. Berry, Jr., Asst. Atty. Gen., for respondent.
Defendant appeals from conviction of child molestation under Section 563.160, statutory references are to RSMo 1949 and V.A.M.S. and sentence of three years in the penitentiary.
There is no question about a jury case being made and the only matter raised and properly preserved for appellate review is the correctness of Instruction No. 1. Defendant does claim that a statement in the opening argument of the special prosecuting attorney was improper and prejudicial. However, his statement does not appear in the record but only the objection and ruling of the Court, as follows:
"Mr. Saunders: We object to the argument by Senator Matthes that there has been a wave of sex crimes.
"The Court: Stay within the record and argue the evidence."
Thus it appears that the Court sustained the objection to whatever was said, and admonished counsel, and that no further request for any other action was made. See State v. Breeden, Mo.Sup., 180 S.W.2d 684 and cases cited, loc. cit. 687. In this situation, we cannot find error.
Section 563.160 is as follows:
"Any person who in the presence of any minor, shall indulge in any degrading, lewd, immoral or vicious habits or practices; or who shall take indecent or improper liberties with such minor; or who shall publicly expose his or her person to such minor in an obscene or indecent manner; or who shall by language, sign or touching such minor, suggest or refer to any immoral, lewd, lascivious or indecent act, or who shall detain or divert such minor with intent to perpetrate any of the aforesaid acts, shall be considered as annoying or molesting said minor and shall upon conviction be punished by imprisonment in the penitentiary for a period not exceeding five years, or be punished by imprisonment in the county jail for a period not exceeding one year, or be fined in a sum not to exceed five hundred dollars or by both such fine and imprisonment."
The information substantially followed the wording of the statute. The material part of Instruction No. 1 was as follows:
"The Court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt that the defendant, Roy Randall, in the County of Jefferson, State of Missouri, on or about the 4th day of September, 1950, did then and there unlawfully and feloniously, in and upon and in the presence of one Melba Cordia, a female child of the age of 12 years, indulge in degrading, lewd, immoral and vicious habits or practices, by then and there taking indecent and improper liberties with such minor and publicly exposing his person to such minor in an obscene and indecent manner and did then and there by language, sign and touching such minor, suggest and refer to an immoral, lewd, lascivious or indecent act, and did then and there detain and avert such minor with intent to perpetrate the acts aforesaid, then and in that event you will find the defendant guilty."
The evidence supported the fact issues submitted in this instruction. The State's evidence was that the girl was walking along the highway to go to a neighbor's house to buy some eggs and that defendant, driving in the same direction, stopped and asked her to ride. When she got in his car, she told him where she was going but he drove by the house. However, when she said that was where she was supposed to get off, he stopped the car. When she started to get out he put his arm around her waist and pulled her over to him, having his private parts exposed. She pulled away and got out of the car and he followed her, still in an exposed condition. He had hold of her arm and was attempting to pull her back in the car when Mr. and Mrs. Claude Sparks drove up behind defendant's car. When defendant saw them, he released the girl's arm, got in his car and drove away.
Defendant contends that this instruction permitted the jury to find that defendant had committed certain acts constituting child molestation under Section 563.160, as well as the crime of attempting to commit such acts, which he says is prohibited by Section 556.160. ("No person shall be convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.") Under Section 556.150, punishment for attempt to commit a crime is less than the punishment for the crime. However, in this instruction, the violations of the statute are all submitted in the conjunctive and the jury had to find all of them in order to find a verdict against defendant. Therefore, if the jury found the facts hypothesized, defendant would not be convicted of an attempt, as in State v. McCaffery, 225 Mo. 617, 125 S.W. 468, but of the commission of all of the specific acts which were made offenses by the statute. As we have said, there was substantial evidence that defendant did commit all of them. This instruction is very different from the one found erroneous in People v. Crane, 302 Ill. 217, 134 N.E. 99, cited by defendant. See also People v. Phipps, 338 Ill. 373, 170 N.E. 305, 307. The instruction in that case was in the disjunctive and the Court found it erroneous, for the following reason: "Under the instruction given, if the jury thought that the evidence showed an attempt to take indecent liberties but that it did not show the accomplishment of the crime, they might nevertheless have felt justified, under such instruction, in returning a verdict of guilty under a charge of taking indecent liberties, though the proof showed an attempt only." As we have shown, the reasoning of the Crane case is not applicable here.
Furthermore, Section 563.160 is a broader statute than the Illinois statute considered in the Crane case. It is complete within itself and makes the act of detaining a minor, with the intent to do any of the specific acts stated, in itself the crime of molesting a minor and subject to the same punishment as all of the other specific acts. Therefore, Sections 556.150-556.160 would not apply to the act of so detaining a minor. We made a similar ruling in State v. Fielder, 210 Mo. 188, 109 S.W. 580, 582, concerning a statute making it a felony for any person to falsely and fraudulently attempt or offer to vote in and upon a name not his own. We said: "The act, as respects the offenses therein named, is complete within itself, and is not in any way controlled by or in conflict with Section 2360, Rev.St. 1899" (now Section 556.150 relating to attempts to commit offenses).
Defendant further contends that there was no evidence to support the first prohibition of the state ("indulge in any degrading, lewd, immoral or vicious habits or practices") saying habit means customary conduct and there was no evidence of previous or habitual conduct of the defendant. This first prohibition of the statute is general while the other four prohibitions which follow it describe specific acts. It will be noted that the instruction did not submit this first general prohibition as a ground for finding defendant guilty but submitted the other four specific acts as being within this general prohibition of "degrading, lewd, immoral and vicious habits or practices." The specific acts submitted could be practices whether habits or not. We note that one definition of practice is "action" or "deed", Webster's New International Dictionary 2d Ed., and we think it is used in that sense in this statute. We hold this submission was proper and that all of the specified acts do come under this general designation. We also think that any other acts (not stated specifically in the statute) which could come under this general designation should be submitted and hypothesized in the same way as were the four specific acts (stated in the statute) in this case. However, we do not mean to say that any one of these four specific acts could not be submitted separately as the sole basis for conviction. We do say that it is not a reasonable construction of this statute to consider it as requiring a showing of previous or habitual conduct, although habitual conduct may, no doubt, come under it. Considering it as a whole, we think it clear that the offense created by this statute is the offense of child molestation and that proof of commission on a single occasion of any one of the specific acts described therein is sufficient to prove that offense. Here the jury was required to find all four of them.
Defendant's final objection to the instruction is that it is misleading, confusing, unintelligible and incorrect because it used the word "avert" instead of the statutory word "divert". We do not think this could have been prejudicial because the word "avert" was in the conjunctive with the statutory word "detain" and the meaning of that word was clear. Moreover, one definition of both "avert" and "divert" is "to turn aside", Webster's New International Dictionary 2d Ed., so that these are not words of directly opposite meaning. We, therefore, hold that Instruction No. 1 was not prejudicially erroneous under the facts of this case. There is no error in the record proper, the information being sufficient, the verdict responsive, and allocution was afforded.
The judgment is affirmed.
All concur.