Opinion
No. 42975.
May 12, 1952.
Defendant's conviction of child molestation is affirmed. It was not necessary for an instruction to include a finding as to intent. And an objection was properly sustained to a question relating to intent. Instructions on rejecting the evidence of a witness who has sworn falsely and on reasonable doubt were not erroneous. The jury argument did not require a mistrial.
1. CRIMINAL LAW: Child Molestation: Intent Immaterial: Instruction Upheld. The willful and unlawful acts of defendant upon the person of an eight year old child were a violation of the statute, and it was unnecessary for an instruction to contain a clause that such acts were done with intent to take indecent and improper liberties.
2. CRIMINAL LAW: Evidence: Child Molestation: Question on Intent: Objection Properly Sustained. An objection was properly sustained to a question as to whether defendant intended to do anything obscene or molest the child.
3. CRIMINAL LAW: Trial: Credibility of Witness: Instruction Upheld. An instruction that the jury may reject the evidence of a witness who has sworn falsely was not erroneous.
4. CRIMINAL LAW: Reasonable Doubt: Instruction Upheld. An instruction on reasonable doubt was not erroneous.
5. CRIMINAL LAW: Jury Argument: Mistrial Not Required. A jury argument was justified by the evidence and did not require the declaration of a mistrial.
Appeal from Scott Circuit Court; Hon. R.B. Oliver, III, Judge.
AFFIRMED.
J. Grant Frye for appellants.
(1) Although Section 559.350, R.S. 1949, does not specifically include intent as a necessary element of the offense, still it is in law a necessary element thereof; and a failure to submit the intent with which the alleged act was done in a proper instruction was error. For this reason Instruction 1 was erroneous in omitting such element: Appellant's Instruction A was correct and it was error to refuse it; and, further, the court was required of its own motion to give an instruction on intent; and failure to give such was error. State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301; State v. Carter, 259 Mo. 349, 168 S.W. 679; Mansur v. Lentz, 201 Mo. App. 256, 211 S.W. 97; Terry v. Metropolitan Life Ins. Co., 206 S.W.2d 724; Morissette v. United States, 96 L.Ed. 181. (2) The court erred in excluding the evidence offered by appellant on his direct examination on his intent in touching the child. Authorities supra. (3) Instruction 3 on credibility is erroneous as it permits the jury to disbelieve, arbitrarily, the truth a witness may have told on material facts just because he falsely testified on any one material fact. This was an invasion of the province of the jury and an erroneous declaration of law. State v. Cushing, 29 Mo. 215; State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492; State v. Clark, 142 S.W.2d 68; State v. Weiss, 185 S.W.2d 53; Byrd v. State, 17 Ala. App. 301, 84 So. 777; Roberts v. State, 157 Ark. 381, 248 S.W. 293; State v. Kanakaris, 54 Mont. 180, 169 P. 42. (4) Instruction 2 on reasonable doubt is erroneous in that it impliedly says that a reasonable doubt should arise out of the evidence whereas it could also well arise out of a lack of evidence. It is further erroneous as being a restriction on the basic principle of reasonable doubt. Appellants were entitled to an instruction on reasonable doubt. Appellants were entitled to an instruction on reasonable doubt free from ambiguity and uncertainty and restrictive limitation. Sec. 546.070, R.S. 1949; State v. Quinn, 344 Mo. 1072, 130 S.W.2d 511; State v. Lambert, 318 Mo. 705, 300 S.W. 707. (5) The court erred in not striking out the testimony of Witness Gentry where he said that the appellant was "rubbing, maybe", the child's private parts. This was merely a conjecture of the witness, but was on a vital issue, and was highly prejudicial. The witness had no knowledge and was merely guessing and invaded the province of the jury. Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Gunnin v. Bankers Shippers Ins., 66 Ga. App. 574, 18 S.E.2d 563; Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600. (6) The court erred in requiring appellant on cross-examination to bolster the testimony of Witness Gentry, which had not been attacked, by negativing any motive of Witness Gentry in his testimony adverse to appellant, and in effect attempting to rehabilitate such witness. In effect the appellant was being compelled to give his conclusion of another's testimony and to characterize it as being worthy of belief. Dugger v. Kelly, 168 Iowa 129, 150 N.W. 27. (7) The argument of the prosecuting attorney and of his assistant was inflammatory in characterizing the appellant as a rat and as appealing to the prejudice of the jury in commenting upon the effect of having to use the child as a witness and in suggesting to the jury that suppose it had happened to their child, and in the other remarks of such attorneys as complained of in Assignments 11 and 12 of his motion for new trial. State v. Schneiders, 259 Mo. 319, 168 S.W. 604; State v. Fischer, 124 Mo. 460, 27 S.W. 1109; State v. Bobbst, 131 Mo. 328, 32 S.W. 1149; State v. Dixon, 253 S.W. 746; State v. Campbell, 278 S.W. 1051; State v. Richardson, 349 Mo. 1103, 163 S.W.2d 956.
J.E. Taylor, Attorney General, and Hugh P. Williamson, Assistant Attorney General, for respondent.
(1) Instruction 1 was not erroneous by reason of its failure to submit, specifically, to the jury the intent with which the alleged acts in the instant case were done. Secs. 559.350, 563.160, R.S. 1949; 22 C.J.S., sec. 30, p. 85; State v. Frazier, 98 S.W.2d 707, 339 Mo. 966; State v. Mull, 300 S.W. 511, 318 Mo. 647; State v. Yates, 256 S.W. 809, 301 Mo. 255; State v. Hersh, 296 S.W. 433; State v. Egner, 296 S.W. 145, 317 Mo. 457; Simmons v. State, 10 So.2d 436; United States v. Crimmins, 123 F.2d 271; State v. Foster, 197 S.W.2d 313, 355 Mo. 577; State v. Stringer, 211 S.W.2d 925, 357 Mo. 978. (2) The court did not err in excluding the evidence offered by appellant in his direct examination on his intent in touching the minor in the instant case. (3) Instruction 3 on credibility is not erroneous. State v. Whipkey, 215 S.W.2d 492, 358 Mo. 563; Larson v. Webb, 58 S.W.2d 967, 332 Mo. 370. (4) Instruction 2 on reasonable doubt is not erroneous. State v. Dooms, 217 S.W. 43, 280 Mo. 84. (5) The court did not err in failing to strike out that portion of the testimony of witness, James Clark Gentry, referred to in Point (5), of appellant's brief. Boulos v. Kansas City Pub. Serv. Co., 223 S.W.2d 446, 359 Mo. 763; State v. Coffman, 230 S.W.2d 761, 360 Mo. 782. (6) The court did not err in admitting testimony of appellant regarding his personal relations with the witness, James Clark Gentry, as appellant urges in Point (6) of his brief. (7) The argument of counsel for the state was not of such a nature as to support a motion for a mistrial. State v. Brooks, 5 S.W. 257, 92 Mo. 542; State v. Summer, 45 S.W. 254, 143 Mo. 220; State v. Gartrell, 71 S.W. 1045, 171 Mo. 489; State v. Allen, 74 S.W. 839, 174 Mo. 689; State v. Jones, 155 S.W. 32, 249 Mo. 80.
Appellant Eddie Frazer was found guilty by a jury in the Circuit Court of Scott County, Missouri, on a charge based on Section 563.160, RSMo 1949, which relates to the molestation of a minor. The jury assessed a punishment of three years' imprisonment in the State Penitentiary. From the judgment entered, the defendant appealed.
The evidence disclosed that the following occurred: On July 30, 1951, Jeanette Lou Armstrong, then 8 years old, was visiting at the home of the Gentry family who lived in the same neighborhood. While she was there, the defendant Frazer, who also lived nearby, came to the Gentry home. When Frazer entered the dining room where Jeanette was sitting at the table, he seated himself next to her. After a short time, Jeanette, Lorraine Gentry, a small child, and the defendant went to the back bedroom where a small baby was in a crib. Jeanette testified that in the bedroom defendant "pushed me down on the bed" and "He ran his hand up my shorts and felt between my legs and on my breast." Her testimony was that while defendant was holding her on the bed, Mr. Gentry came into the room and "He (the defendant) jumped up but he didn't let me go. He set up on the bed. At first he laid down and when Mr. Gentry come in he jumped up." Jeannette further testified that after Gentry passed through the room the defendant gave her a quarter and told her to tell her mother she had found the money; that he admonished her not to tell anyone about the incident. Gentry testified that when he passed through the room, he noticed the defendant and Jeannette on the bed and he corroborated the evidence of Jeannette as to what occurred; that he later reported what he saw to Mrs. Armstrong. Mrs. Armstrong testified that when Jeannette came home, she said she had found a quarter.
The defendant testified that he sat on the bed next to Jeannette; that he gave her a quarter; that he had often given children money. He denied having touched Jeannette in any manner as testified to by her or Mr. Gentry.
The defendant in his brief admits that the evidence was sufficient to sustain his conviction. One of the assignments of error is that instruction No. 1 was erroneous. This instruction authorized a conviction if the jury found that "the defendant did willfully, unlawfully and feloniously take indecent or improper liberties with Janet Sue Armstrong, a minor of the age of 8 years by then and there putting his hands upon and about her person and the private parts of her body, * * *." It is defendant's contention that the instruction should have required a finding before authorizing a conviction that defendant's touching the child was "with an intent to take indecent and improper liberties with her." There is no merit to this contention. A finding that the defendant did willfully, unlawfully and feloniously take indecent or improper liberties with the child was a finding that the acts were done intentionally.
This same contention is made in another assignment of error. Defendant was asked, "On this day did you have any intention of doing anything obscene or in any way to molest this child?" An objection to this question was sustained and defendant says this was error. Defendant denied having touched the child as testified to by the child and witness Gentry. That was the issue before the jury. If appellant did in fact willfully and unlawfully touch the child in the manner shown by the State's evidence, then it was immaterial what defendant's intentions were. The statute and the moral law denote such acts as indecent. That law governs and not what the defendant in this case may deem to have been improper, obscene or indecent conduct. The acts of the defendant constituted the offense of taking indecent and improper liberties with the child. The defendant offered and the court refused an instruction presenting the same question, that is, the question of intention. The instruction was properly refused on the grounds above-stated.
The defendant complains of an instruction on the credibility of witnesses, [647] particularly that portion dealing with falsus in uno, falsus in omnibus. The portion of the instruction reads as follows: "If, upon a consideration of all the evidence, you conclude that any witness has wilfully sworn falsely as to any material matter involved in the trial, you may reject or treat as untrue the whole or any part of such witness' testimony. `Wilfully,' means intentionally, not accidentally."
The complaint is that this instruction authorized the jury to disregard evidence which the jury believed to be true. No contention is made that the evidence did not justify such an instruction. The case of State v. Whipkey, 358 Mo. 563, 215 S.W.2d 492, and others were cited by the defendant. In the Whipkey case the instruction read, "you should reject all or any portion of such witness' testimony." (Emphasis ours) The instruction now before us for consideration reads, "you may reject or treat as untrue the whole or any part of such witness' testimony." (Emphasis ours) The distinction is apparent and no further comment is necessary. For a discussion on the merits of such instruction see State v. Foster, 355 Mo. 577, 197 S.W.2d 313, l.c. 322-324 (22); also 23 C.J.S. 826, Sec. 1259 and 70 C.J. 783, Sec. 969.
Defendant assigns error to the giving of an instruction on reasonable doubt. He says the instruction "impliedly says that a reasonable doubt should arise out of the evidence whereas it could also well arise out of a lack of evidence." We see no merit in this contention. The instruction charged the jury "that it devolves upon the state to prove, by evidence, to the satisfaction of the jury, beyond a reasonable doubt, that the defendant committed the crime, * * * and if, upon a view of the whole case, you have a reasonable doubt of defendant's guilt, you will give him the benefit thereof, and acquit him." The instruction then went on to say that "a reasonable doubt * * * must be a substantial doubt * * * formed on a careful consideration of all the facts and circumstances proven in the case and not a mere possibility of the defendant's innocence." In our opinion the instruction did not "whittle away" the defendant's rights as he contends. State v. Mardino, 268 S.W. 48, l.c. 51 (6-8). Defendant in his brief says, "The instruction criticized follows the general pattern of such instructions given in many instances and often approved on appeal, but Appellant complains that it limits the principle unduly." We cannot agree with the contention made.
The defendant says the trial court should have declared a mistrial as requested during the argument by the State's attorney for alleged prejudicial remarks which tended to inflame the minds of the jury. Declaring a mistrial for such reasons rests largely within the discretion of the trial court. 23 C.J.S. 522, Sec. 1083. We are of the opinion the trial court did not abuse this discretion in this case. For example, during the argument the State's attorney was commenting on the burden of proof required to convict and he said, "A man has to be proven guilty, and we had to use that little girl — we had to stain her character." Defendant's request that a mistrial be declared was refused. The evidence justified the remark made. It certainly was embarrassing to the little girl and to the members of her family to be compelled to give such sordid evidence in a public trial.
We need not review a number of other assignments which in our opinion are of no more serious nature than the one mentioned above and which would not justify the granting of a mistrial. State v. Griffin, 320 Mo. 288, 6 S.W.2d 866, l.c. 868 (9, 10); 23 C.J.S. 573, Sec. 1102. We find the defendant had a fair trial and that the record is free from prejudicial error.
The judgment is affirmed. Bohling and Barrett, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All the judges concur.