Opinion
No. 43802.
October 12, 1953. Motion for Rehearing or for Transfer to Court en Banc Denied November 9, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS.
Morris A. Shenker, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
The appellant, Schubkegel, has been found guilty of an offense "against morals", V.A.M.S. Ch. 563, and sentenced to six months' imprisonment in the workhouse. Specifically, he has been convicted under the recently enacted statute, V.A.M.S. § 563.160, Laws Mo. 1949, p. 249, which provides that "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 * * *." The information upon which he was convicted charges that the appellant, on the 23rd day of September 1951, "in the presence of a certain minor, to-wit: Nancy Marie * * of the age of eleven years did then and there wilfully and feloniously indulge in degrading, lewd, immoral and vicious habits and practices by then and there masturbating and thus and thereby did annoy and molest said minor; * * *." There was a motion to quash the information on the ground that it did not state an offense or a violation of the laws of Missouri, and throughout the trial it was inferentially claimed that the evidence was insufficient to prove or constitute a crime, principally for the reason that there was no proof or claim that the appellant touched the child. In this connection it is also urged that the court erred in instructing the jury in that the instruction submitting the offense hypothesized that the appellant in the presence of the child did "commit and indulge in an act of masturbation, and if you find that the same was then a degrading, lewd or immoral practice * * *" without defining the meaning of the term "masturbation." It is said that the word "masturbation" is a technical term of more than one meaning and therefore should have been defined for the jury.
The word "masturbation" may have more than one meaning but all its meanings have to do with a sexual act which in the presence of a child is certainly a "degrading," "lewd" practice and plainly falls within the first and general prohibition of the statute. State v. Randall, Mo. Sup., 248 S.W.2d 860. What the appellant did is not dependent alone upon the testimony of the child; her mother, from an elevated position at the front door, could see into the appellant's car and she described in unmistakable language what the appellant did and with her testimony it was indeed unnecessary and superfluous to have defined the word for an adult jury. A lewd or lascivious touching of a child is an offense under the statute, State v. Frazer, Mo.Sup., 248 S.W.2d 645, but physical contact with the child is not necessary, lewd practices, acts suggestive of lustfulness, lasciviousness and sensuality, "in the presence of any minor" are likewise condemned and constitute a punishable offense within the statute. The information is in the language of the statute and sets forth a specific act within the general prohibition, State v. Randall, supra, the evidence, if accepted, unquestionably establishes the offense and the trial court did not prejudicially err in failing to define the specific act set forth in the information and the instruction. State v. Frazer, supra.
The appellant was positively identified by the child and her mother as the person who committed the offense and their recognition of him was not a matter of opinion. State v. Preston, Mo.Sup., 184 S.W.2d 1015. The next day, at a police station, the child said, "Well, he looked different with different clothes on," but she said, "I recognized his voice right away." In addition the appellant drove past the child's residence a second time and the children, who had been playing in the yard, and the mother obtained the license number of his automobile and were subsequently able to identify the automobile as well as the appellant. It is now objected that the court erred in excluding evidence with reference to the mother's and the child's inability to identify the defendant at a police station after his arrest. The basis of the objection is that the defendant called a policeman, whose name had been endorsed on the information as a state's witness, and, among other questions, asked him, concerning the child, "Was she able to identify him?" The court sustained an objection to that question on the ground that the question called for a conclusion. Defense counsel was not restricted in his examination along this line, however, and the question was in fact asked and answered. When the officer was asked whether the mother was certain that the appellant was the man said, "She stated that she wished to consult her husband about this. Q. Did she at any time say that she was not sure that he was the man? A. No." As to the child the question was "Did the daughter, * * *, at any time state that she was not certain that he was the man? A. Not to my knowledge. Q. What if anything did Nancy Marie * * * say in that regard? A. Nancy stated that the clothes were different on the man." The mother, upon cross-examination, was asked, "Now, isn't it a fact that when you saw him there at the District (police station) that you were not able to say that he was the man who passed your house? A. No, sir, I was not asked whether I could recognize him or not. Q. You were not asked? A. No, sir, because they asked me if I could testify whether truly that was the man, and I said, `Well, I seen him from the porch there to the car and from the window and I didn't know if that was good enough.'" Subsequently, in explanation of that answer, she said, "Yes; I believe I says `Would that hold up in court,' I believe I did." While the court sustained an objection to the single question, the court did not in point of fact exclude relevant evidence with reference to the witnesses' ability to identify the appellant and as we understand the policeman's testimony he did not say that either the mother or the child were unable to identify him.
It is also urged that the court erred in failing to strike certain prejudicial remarks and comments by the court which placed defense counsel in a humiliating position before the jury to the unjust prejudice of the defendant. The incident occurred on voir dire examination. State's counsel said, "I am undertaking what is called the voir dire examination, which means to examine the jurors. In the course of this examination naturally I am going to try to get some information from you in order that at the finish of the voir dire examination that I may make an intelligent choice of jurors for the State." Defense counsel said, "I am going to object to that statement for the reason that Mr. Bruntrager does not make any selection. The selection is made by both sides — as a matter of fact, the defendant — The Court: Wait, don't argue it. Objection overruled. Mr Bruntrager's statement is proper and there isn't any reason for objection — Mr. Hennelly: Save an exception. The Court: Both sides do make it and Mr. Bruntrager didn't say anything otherwise. Let's not get into a dispute about little matters of that sort. Go ahead." Defense counsel then objected to the court's statement as prejudicial in that the statement left the impression with the jury that his objection was frivolous and not made in good faith. It was not necessary for the court to make the statement in passing upon the objection before the court, but if the statement is to be construed as even a mild reprimand there was no apparent animosity in it and we are unable to see that counsel could have been "humiliated" by it or that the appellant's right to a fair trial was so infringed as to compel the granting of a new trial. State v. Hudson, 358 Mo. 424, 215 S.W.2d 441; State v. Thursby, Mo.Sup., 245 S.W.2d 859; State v. Atkins, Mo.Sup., 292 S.W. 422. The court's remark could not possibly be construed as a comment on the weight of the evidence, State v. Davis, Mo.Sup., 217 S.W. 87, or as expressive of the appellant's guilt, State v. Taylor, 293 Mo. 210, 238 S.W. 489, and was not comparable to the intemperate remarks in State v. Montgomery, Mo.Sup., 251 S.W.2d 654.
In addition, it is urged that the court erred in failing to sustain the appellant's objection to certain statements by state's counsel upon final argument, in failing to reprimand counsel and in failing to declare a mistrial for the reasons that the argument was "improper, was not confined to the facts in evidence, was highly inflammatory, and was presented to the jurors for the purpose of biasing and prejudicing them against the defendant." The statements specifically objected to and the court's action with reference to the objections are these: The state's attorney said, "As I have said, we talked about the ownership of the car; what difference does it make? Schubkegel was driving that car on three different occasions, two when he was seen by the police, one when he was seen by Marie * * * and Mrs. * * *; I am sure Mr. Dobberstein has in effect admitted the guilt of the defendant. He said that there was — Mr. Dobberstein: If the Court please, I am objecting to that line of argument, it is inflammatory, it is prejudicial. The Court: The first of those two sentences is objectionable. I do not think that there is any admission to be drawn from it, and the jury will disregard that statement." Defense counsel did not ask that the state's attorney be reprimanded but he did ask for a mistrial which the court denied. Subsequently the state's attorney was commenting upon the testimony of the police officer, called by the appellant, upon the ability of the state's witnesses to identify the defendant. He said, "Another thing that Officer Ferguson was doing, he was putting himself in the place of you jurors, he was taking the part of the judge and jurors; police officers don't do that, something that he had absolutely no right to do — that is up to the jury. Mr. Dobberstein: I am objecting to that line of argument, highly inflammatory as to what Officer Ferguson did or thought there. The Court: It is not material, as far as the interpretation of counsel for the State is concerned. The objection is overruled. Mr. Dobberstein: Save an exception." In concluding, the state's attorney said, "You have got to stop it, you have got to ask yourselves this, this is just the kind of exhibitionist who would masturbate in the presence of little kids, it is only a question of what it will lead to Mr. Dobberstein: If the Court please, I am objecting to this line of argument, highly improper. The Court: Objection sustained; we are only concerned with this situation of the present date and the present case, and the jury will disregard that argument of a speculative nature. Mr. Dobberstein: Calculated to inflame the minds of the jury, and I ask that a mistrial be declared. The Court: We feel there is no basis for a mistrial; we think the jury can decide this case fairly and impartially. Motion for mistrial is denied."
The trial court, as a matter of fact, sustained objections to two of the statements and there was no request that counsel be reprimanded. State v. Arnett, 338 Mo. 907, 917, 92 S.W.2d 897; State v. Kelly, Mo. Sup., 107 S.W.2d 19, 21. If the state's evidence is to be accepted there was a basis for the statement that the appellant was an "exhibitionist." State v. Allen, 174 Mo. 689, 698, 74 S.W. 839. The statements complained of are not so patently inflammatory, in view of the court's rulings, that it can be confidently said that the appellant did not have a fair trial or that the trial court abused its discretion in not declaring a mistrial. State v. Myers, 354 Mo. 277, 281-282, 189 S.W.2d 279, 281; State v. Marshall, 317 Mo. 413, 425, 297 S.W. 63; State v. Johnson, 351 Mo. 785, 174 S.W.2d 139.
There was no error upon the record proper and the judgment is affirmed.
WESTHUES and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.