McDermett v. United States, 1351.

• Decision Date: 14 July 1953
• Docket Number: No. 1351.,1351.
• Citation: 98 A.2d 287
• Parties: McDERMETT v. UNITED STATES.
• Court: D.C. Court of Appeals

Page 287

98 A.2d 287

McDERMETT v. UNITED STATES.

No. 1351.

Municipal Court of Appeals for the District of Columbia.

Argued June 22, 1953.

Decided July 14, 1953.

Edward T. Kehoe, Washington, D. C., with whom Evan T. Davis, Washington, D. C., was on the brief, for appellant.

Samuel J. L'Hommedieu, Jr., Asst. U. S. Atty., Washington, D. C., with whom Leo A. Rover, U. S. Atty., William R. Glenlon, William J. Peck and E. Riley Casey, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

CAYTON, Chief Judge.

By information filed in the trial court defendant was charged with assault.¹ He was convicted on the testimony of a police officer named Klopfer who said that simultaneously with an invitation to a homosexual act defendant put his hand on the officer's genital organ. The question before us is whether under the facts as presented at the trial the conviction can be. permitted to stand.

Quite recently we had occasion to review a conviction of a charge of assault, in connection with which the defendant was said to have expressed a homosexual purpose. Dyson v. United States, D.C.Mun.App., 97 A.2d 135.² There the defendant approached a police officer on a public street in the nighttime and asked the officer to light his cigarette. The officer handed him a book of matches, and immediately after defendant had lit the cigarette and returned the matches he reached out and squeezed the officer's genitalia. We based our decision largely on Beausoliel v. United States, 71 App.D.C. 111, 107 F.23 292, 296, where the court said that the offense contemplated by the statute is a common law assault and, directing its attention specifically to cases involving sex aberrations, said: "At common law, it was generally held that a man who took improper liberties with the person of a female, without her consent, was guilty of assault * * The attempt need not be made violently, insolently, or in anger. Such assaults are not made in that way." Relying on the reasoning of that decision we said: "If it is an assault to touch a woman unlawfully in the expression of a lustful instinct, then surely it is just as much an assault for one man to fondle another without his consent in the intimate expression of a perverted desire." (Emphasis supplied.) We stated our conclusion thus: "So, 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." (Emphasis added.)

It will be seen that the three emphasized words, "without his consent," provided an essential basis for our ruling. And we did not fail to observe that if the man so touched or fondled were himself a deviate and responded favorably to the approach, "such response would of course constitute consent and nullify the offense."

It may of course be assumed that the arresting officer in this case was not a deviate. But the question is whether his conduct was so responsive toward defendant's overtures as to indicate consent. To answer that question the evidence must be examined in some detail. Such examination has satisfied us that the facts here are greatly different from those in the Dyson case.

There the defendant asked and received a light and immediately afterward, with no intervening conversation, applied the pressure of his hand to the officer's body. There could not have been the slightest basis in that case for saying that the officer consented. Here a series of events lasting upwards of 40 minutes pointed to consent. When Officer Klopfer first saw defendant, in the men's room of a moving picture theater, he was engaged in an act of onanism. Klopfer did nothing about it and defendant stopped of his own accord when several other people came into the room. Defendant then engaged Klopfer in conversation about the moving picture which was showing in the theater; then Klopfer left and stood in front of the theater and defendant also came out and walked past the officer and stood in front of a nearby store; then Klopfer followed in the same direction and defendant resumed the conversation remarking, "that there wasn't much doing in Washington," to which Klopfer agreed. They also talked about defendant having been in the Canadian Army (he was wearing a Canadian Army jacket with emblems of that army on it); they also talked about the weather. During that time they continued to walk together, circling three city blocks and covering a total of seven blocks. During the walk defendant once stepped into a doorway and Klopfer stepped in with him and there, he said, they continued their conversation about the weather. During the conversation Klopfer said he was from South Carolina, which was not true, and that he was staying at the Annapolis Hotel, which was also not true. Klopfer admitted that he "kind of thought" defendant was a homosexual by reason of what he had seen at the theater and that when they came to the Annapolis Hotel defendant was still walking along with him or behind him and Klopfer walked into the men's room on the first floor of the hotel. Though he said sex had not previously been discussed during the conversation Klopfer testified, "I wanted to see what he was up to." Being asked on cross-examination why he didn't stay in the lobby or go upstairs to his room he answered: "I knew he was beside me. I just wanted to find out exactly what he had in mind, in view of his conversation, if anything." Klopfer then stood in front of a urinal and defendant walked up next to him, again commenced to masturbate and then did the touching above described and suggested to Klopfer an act of sodomy. Klopfer asked, "where can we go?" to which defendant suggested that they go up to Klopfer's room. Then it was that Klopfer displayed his badge, revealed his true identity and placed defendant under arrest. Klopfer was in part corroborated by another police officer who had followed the two men and said he saw them walking together on the street and talking together. He said he was outside the men's room at the hotel when he heard some scuffling and helped Klopfer subdue the defendant who was refusing to submit to the arrest. According to both officers, defendant after the arrest admitted the touching and also admitted having engaged in prior homosexual acts for about five months.

It is a fundamental policy of the law, as stated by Judge Sanborn in the leading case of Butts v. United States, 8 Cir., 273 F. 35, 38, 18 A.L.R. 143, that: "The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it." (Cited with approval in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413.)

It seems plain that the officer in this case had an entirely different purpose in mind. When he first saw defendant in the men's room of the theater he did nothing to stop his act of onanism. He did not arrest him;³ instead he engaged in conversation with defendant, apparently waited for him in front of the theater, and after defendant had walked past him, followed defendant down the street where the conversation was resumed. Although he said the conversation did not involve sex the defendant might reasonably have believed that Klopfer not only was not shocked by what he saw but was interested in developing their acquaintance further and that for that purpose Klopfer took the seven block stroll with him. When they came to the hotel where Klopfer had told defendant he was staying he did not say goodnight and start for the elevator to go to his supposed room....