Henderson v. United States, 1691.
Decision Date | 27 October 1955 |
Docket Number | No. 1691.,1691. |
Court | D.C. Court of Appeals |
Parties | Alleyne HENDERSON, Appellant, v. UNITED STATES, Appellee. |
John W. Kern, III, Asst. U. S. Atty., with whom Leo A. Rover, U. S. Atty., Lewis Carroll and Harry T. Alexander, Asst. U. S. Attys., were on the brief, for appellee.
Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.
We are again called on to review a conviction on a charge of assault, where a defendant in the expression of a homosexual overture touched the genitalia of a police officer.1
The incident took place in a smoking room adjoining the men's room in the basement of a theatre. The arresting officer testified that he passed the defendant in the smoking room and the defendant stood in the doorway between the smoking room and the men's room watching the officer; that after the officer returned from the men's room to the smoking room he walked past the defendant and stopped at the side of the room about six or seven feet away from defendant. He continued:
Another officer was waiting upstairs in the theatre lobby, and the two officers took the defendant to the call box and had him transported to headquarters. There later in the evening the two officers talked with defendant. They testified that in the course of their conversation defendant admitted the act and admitted being a homosexual. Defendant did not take the stand or offer any evidence. The jury found him guilty.
We first discuss three assignments of error dealing with requested instructions and with the judge's charge to the jury. In one tendered instruction the judge was asked to tell the jury that they must acquit unless by defendant's act of touching him the officer "suffered great damage, in that he suffered fear, shame, humiliation, or mental anguish." This is not a correct statement of the law, as will appear from what is said later in this opinion. The instruction was properly refused.
In another instruction defense counsel asked the judge to tell the jury that if the officer "responded favorably to the approach, such response would, of course, constitute consent and nullify the offense." There was no error in refusing this instruction because the judge in his charge covered the subject of consent fully, accurately and fairly. Among other things he told the jury specifically that it was their duty to acquit the defendant unless they felt beyond a reasonable doubt that there was a lack of consent on the part of the officer.
Appellant also says the judge in his charge drew an improper analogy between consent and entrapment. It is probably true that more was said on the subject of entrapment than was necessary, since defendant did not rely on that as a defense. But we think it was not prejudicial and could not have misled the jury, because the charge as a whole was thoughtful and accurate and completely fair to defendant's interests.
More important is the claim that the evidence did not support a charge of assault. More than two years ago we explored a similar situation at considerable length, and decided that acts of this kind were within the prohibition of our assault statute. Dyson v. United States, D.C. Mun.App., 97 A.2d 135. We based our decision largely on Beausoliel v. United States, 71 App.D.C. 111, 107 F.2d 292, 295. There the court said that assault as contemplated by the statute "`is common law assault, which is defined in various ways'", and directing its attention specifically to cases involving sex aberrations, said After drawing analogies with and giving illustrations of cases in which attempts at various types of sexual misbehavior were held to be assaults in law, the court continued:
From that we reasoned that if it is an assault to touch a woman unlawfully in the expression of a lustful instinct, then it is just as much an assault for one man to touch another without his consent in the intimate expression of a perverted desire. And we concluded, Judge Hood dissenting, "[s]o, applying the common law rule and paraphrasing only slightly what the court there said, we rule that a man who takes improper liberties with the person of another man without his consent is guilty of assault." Dyson v. United States, supra, 97 A.2d at page 137.2
The following year we made the same ruling in ...
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Matter of A.B.
...has even used the phrase "intimate expression of a perverted desire" to define what constitutes a sexual touching. Henderson v. United States, 117 A.2d 456, 457 (D.C. 1955) (homosexual touching of genitalia). While the factual circumstances heretofore presented to this court have been limit......
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RAY v. U.S., 89-226
...See also Guarro v. United States, supra (unconsented sexual touching sufficiently offensive to constitute assault); Henderson v. United States, 117 A.2d 456 (D.C. 1955) (same). What we distillfrom these cases, particularly Harris, is that an assault conviction will be upheld when the assaul......
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Guarro v. United States, 12844.
...Crimes, § 212 (5th ed. 1952). 5 See 1 Wharton, Criminal Law § 751 (12th ed. 1932), and cases there cited. 6 See Henderson v. United States, D.C. Mun.App.1955, 117 A.2d 456; McDermett v. United States, D.C.Mun.App. 1953, 98 A.2d 287; Dyson v. United States, D.C.Mun.App.1953, 97 A.2d 7 The de......
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Goodman v. United States, 1705.
...on a number of occasions. Just a few days ago we had occasion to discuss the general problem at some length. Henderson v. United States, D.C.Mun. App., 117 A.2d 456. We reviewed the law and decided, as we had in the earlier cases, that a man who takes improper liberties with the person of a......