Landrum v. State

• Decision Date: 25 March 1953
• Docket Number: No. A-11688,A-11688
• Parties: LANDRUM v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 525

255 P.2d 525

96 Okla.Crim. 356

LANDRUM v. STATE.

No. A-11688.

Criminal Court of Appeals of Oklahoma.

March 25, 1953.

Syllabus by the Court.

1. The fundamental rule of construction of a statute is to ascertain and give effect to the intention of the Legislature as expressed in the statute. To ascertain the intention of the Legislature in the enactment of the statute, the court may look to each part of the same, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation.

2. The term 'lewdness' as used in Tit. 21 O.S.1951 §§ 1029, 1030, means unlawful indulgence in lust, sensuality, passion, eager for sexual indulgence, whether public or private. And where the charging part of an information details acts on the part of the person charged that would constitute lewdness as thus defined, and such facts are set forth in ordinary and concise language without repetition, and in such manner as to enable a person of common understanding to know what is charged, such information is sufficient to withstand demurrer.

3. Where the uncontradicted evidence at trial of a male person charged with lewdness, developed that such person, visibly under the influence of intoxicating liquor, had placed his arms around a female person who was partially lying on a desk in a public office and who was the willing recipient of his attentions, and that said male person was fondling one of the breasts of the female person and kissing her on the neck: Held, that the behavior shown was sensual, passionate, indecent, and lewd, and constituted an active phase in sexual indulgence and violative of the provisions of Tit. 21 O.S.1951 §§ 1029 and 1030, and the trial court did not err in overruling the demurrer interposed to the evidence.

4. Where the record raises a strong presumption that irrelevant information given the court by the prosecuting attorney at time of sentencing a defendant, influenced the court in the amount of punishment assessed, which was the maximum, such sentence will in the interest of justice, be modified. Tit. 22 O.S.1951 § 1066.

S. S. Lawrence, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and A. M. Widdows, City Atty., Tulsa, for defendant in error.

POWELL, Presiding Judge.

Preston Landrum was charged in the municipal criminal court of the city of Tulsa with the crime of lewdness, was tried before the court, a jury being waived, was convicted, and his punishment fixed at one year confinement in the Tulsa County jail. Appeal has been perfected to this court.

For reversal counsel urges the proposition that 'the section of the statutes upon which this prosecution is based, supra, does not in any way make the action of the plaintiff in error [who will be referred to as defendant] at the time he was apprehended and charged, guilty of any crime whatsoever, for the reason that he was not in a public place, and there is no suggestion of indecent exposure or a sex crime.'

Counsel concludes his argument with the statement that there was no evidence to support the judgment rendered and that it was evidently the result of passion and prejudice by reason of the defendant being a Negro. Counsel further states, 'I will agree that the alleged conduct of the accused is reprehensible and nauseating, but I firmly and honestly contend under the statutes above quoted, that it is impossible to find the accused guilty of a crime.' The issues raised come about by reason of the overruling by the trial court of the demurrer to the information, and a demurrer to the evidence. No authorities are cited except the statute under which the charge was instituted, Tit. 21 O.S.1951 § 1029, and the statutory definition of lewdness, Tit. 21 O.S.1951 § 1030, all to be quoted hereinafter. We do not find where this court has heretofore construed the statutes in question. We consider detailed treatment justified.

The charging part of the information sets out that:

'On or about the 7th day of July, 1951, within the corporate limits of the city of Tulsa, Tulsa County, Oklahoma, in a building at 114 West Fourth Street, Preston Landrum, the above named defendant, did then and there unlawfully and wrongfully commit an act of lewdness, in that said defendant, being a negro, was holding the right breast of Isabel V. Miller, a white woman, and that the said defendant was caressing and kissing said Isabel V. Miller, in violation of Section 1029, Title 21 of the Revised Statutes of the State of Oklahoma, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of Oklahoma.'

Section 1029 of Title 21, O.S.1951, reads:

'It shall further be unlawful:

'(a) To engage in prostitution, lewdness, or assignation;

'(b) To solicit, induce, entice, or procure another to commit an act of lewdness, assignation, or prostitution, with himself or herself;

'(c) To reside in, enter, or remain in any house, place, building, or other structure, or to enter or remain in any vehicle, trailer, or other conveyance for the purpose of prostitution, lewdness, or assignation;

'(d) To aid, abet, or participate in the doing of any of the acts herein prohibited.'

And Section 1030 of Title 21 reads:

'The term 'prostitution' as used in this Act [Sections 1028-1030 of this Title] shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for indiscriminate sexual intercourse without hire. That the term 'lewdness' shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.'

The defendant filed a general demurrer to the information, and which the court overruled. We find no error in the action of the court in that it is our conclusion that the information sets forth the act charged in ordinary and concise language without repetition, and in such a manner as to enable a person of common understanding to know what is charged. Tit 22 O.S.1951 §§ 409, 410; Group v. State, Okl.Cr.App., 236 P.2d 997; Armstrong v. State, 48 Okl.Cr. 146, 289 P. 1115; 160 A.L.R. 516. A fuller consideration will be developed as we proceed further.

Counsel thereafter and prior to trial interposed an oral motion praying the court to order stricken from the information, beginning with the word in the final clause following 'lewdness', as follows: 'In that defendant, being a negro, was holding the right breast of Isabel V. Miller, a white woman.' The court overruled the motion. By Section 387 of Title 22, O.S.1951, it is provided: 'All forms of pleading in criminal actions, and rules by which the sufficiency of pleadings is to be determined are those prescribed by this code.' Section 492 of the same Title provides that on arraignment as accused may in answer to the arraignment either move the court to set aside the indictment, or information, or may demur or plead thereto, and Section 502 of the Title states: 'The only pleading on the part of the defendant is either a demurrer or a plea.' ¹

While we find nothing in the statutory provisions providing for a motion to strike, yet if an indictment or information contains allegations not necessary in stating the offense with which the accused stands charged, and that are made apparently for the purpose of injecting passion and prejudice against the accused, such matters should be stricken by the court on its own motion, where noticed, or on motion of the accused, but any such motion should be interposed prior to plea or the filing of a demurrer. Par. 51, p. 89, Abbott, Criminal Trial Practice, 4th Ed. A motion, of course, by its very nature is not a pleading but simply is for the purpose of obtaining an order from the court. To have stricken out the allegation that the defendant was holding the right breast of the woman would have rendered invalid the information. We conclude that the court should have stricken the word 'negro' and required the substitution of the word 'man' and should have stricken the word 'white' preceding the word 'woman'. Otherwise, the allegation was a proper one charging the offense of lewdness under the two statutory provisions above quoted.

A close reading of Tit. 21 O.S.1951 §§ 1029 and 1030, will disclose that the purpose of the statute is to punish persons for sex acts, and is not limited but is applicable to both the male and the female sex, male with female, or male with male, or female with female. The color or race of the participants is not involved in a consideration of the charge. It would not make any difference under the statute whether the participants were all white, all black, or white and black, as in this case.

The action of the court in not striking the two words indicated does not, however, constitute reversible error. The words amounted only to surplusage, and we mean by 'urplusage' allegations of matter wholly foreign and impertinent to the case. Wood v. State, 3 Okl.Cr. 553, 107 P. 937; and see par. 69, p. 161, Abbott, Criminal Trial Practice, 4th edition.

If the case had been tried to a jury, the jury from the evidence would have discovered the difference in the race of the participants involved in the acts set out as lewd conduct. The accused possibly would have been entitled to an instruction by the court to the effect that the fact of the difference in the color of the parties involved in the charge could not be taken into consideration in the determination of the guilt or innocence of the person charged, and if found guilty, in the amount of punishment that might be assessed.

There is no provision in the sections of the statutes, heretofore quoted, that specify that the act of lewdness must take place in a public place, as is required by Section 1021 of the same Title, to...