Opinion
Dissenting opinion. For majority opinion see 309 S.W.2d 374.
NEIL, Chief Justice.
I respectfully dissent from the majority opinion in this case for the following reasons:
Accepting the statement of facts in the majority opinion, which no doubt is based upon the record, the defendant had committed no overt act which would warrant his conviction of the crime laid in the indictment.
The facts tend to show that he is a sex pervert. He doubtless had the desire to have an unnatural sex relation with this boy, which is a felony under the statute, and an attempt to have such relationship, if shown by some overt act, would also amount to a felony and be punishable as such. However, the evidence to sustain an attempt to have this relationship is wholly lacking. Quoting from young Shipley's testimony:
Q. 'Did he put his hands on you anywhere?
A. 'He tried to.'
It thus appears that he did not lay his hand upon this boy. I feel that this evidence does not prove an attempt to commit the crime, but is only a manifestation of his desire to commit it. Moreover, the fact that he took this boy to a drive-in moving picture place later on and again 'propositioned' him is only a confirmation of the fact that he manifested a desire to have such criminal relations.
For the foregoing reasons I am constrained to disagree with the majority.