People v. Szymanski, 71.

• Decision Date: 18 May 1948
• Docket Number: No. 71.,71.
• Citation: 321 Mich. 248,32 N.W.2d 451
• Parties: PEOPLE v. SZYMANSKI.
• Court: Michigan Supreme Court

321 Mich. 248

32 N.W.2d 451

PEOPLE

v.SZYMANSKI.

No. 71.

Supreme Court of Michigan.

May 18, 1948.

OPINION TEXT STARTS HERE Appeal from Recorder's Court of Detroit; Joseph A. Gillis, judge.

Anthony Szymanski was convicted of taking indecent liberties with the person of a nine-year-old girl without committing or intending to commit the crime of rape, and he appeals.

Judgment affirmed.

Before the Entire Bench.

William Cohen and George W. Miller, both of Detroit for defendant and appellant.

Edmund E. Shepherd, Sol. Gen., of Lansing, and James N. McNally, Pros. Atty., and Robert Newton Smiley and Mark Friedman, Asst. Pros. Attys., all of Detroit, for the People.

CARR, Justice.

Defendant was convicted in the recorder's court for the city of Detroit of the crime of taking indecent liberties with the person of a nine year old girl, without committing or intending to commit the crime of rape, in violation of Act No. 328, § 336, Pub.Acts 1931, Comp.Laws Supp.1940, § 17115-336, Stat.Ann. § 28.568. The information filed in the case alleged that the offense was committed on the 26th day of May, 1945, in the city of Detroit. It was the claim of the prosecution on the trial that the conduct charged against defendant occurred in a certain theater on the afternoon of the date alleged. Defendant's testimony discloses that he was 26 years of age at that time. Trial by jury was waived and the case was heard before the court. Defendant has appealed from the verdict and sentence.

It is claimed on behalf of defendant that the evidence in the case was insufficient to establish with the requisite degree of certainty that the offense charged was actually committed. The statute cited provides:

‘Any male person or persons over the age of sixteen years, who shall assault a female child under the age of sixteen years, and shall take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape upon such child, shall be guilty of a felony.’

The child against whom the offense is claimed to have been committed, herein referred to as the complaining witness, testified that she entered the theater in company with a younger sister and another girl ten years of age. The children sat together and the youngest fell asleep. A man, claimed by the people to have been defendant, sat down beside the complaining witness. In describing the alleged offensive conduct, she further testified:

‘As soon as he moved in and sat down, he put his hand up my dress. I think I told Adrien to move over, so she did; then I moved over a seat and he moved over a seat, too. He put his hand on the bare skin of my leg, but he didn't move his hand very high, though, up my dress or whatever it was I was wearing. I didn't tell Adrien why I wanted her to move over until after I got out of the show because I was scared. I was so scared I didn't know what to do. He did it until the show was over, I guess, and then I went out with Adrien in a hurry and I told her; then I went home and told my mother, and my mother came back with Adrien.’

It is argued by defendant's counsel that the conduct described in the testimony quoted was not sufficient to constitute the offense defined by the statute. Reliance is placed on language found in the opinion of this Court in People v. Hicks, 98 Mich. 86, 56 N.W. 1102. There the defendant was charged with the crime of taking indecent liberties with the person of a female child, and the child against whom the offense was claimed to have been committed gave testimony similar in character to that of the complaining witness in the instant case. However, in the Hicks case, the child's mother was permitted to detail a conversation in which the child made statements indicating that defendant had taken more objectionable liberties with her person than her testimony on the trial suggested. In holding that such testimony by the mother was incompetent and prejudicial, the Court expressed doubt if, without such testimony, the jury would have covicted of any greater offense than assault and battery. It is significant to note that the Court did not state that a verdict of guilty of the more serious offense charged could not have been sustained on the basis of the testimony of the occurrence as given by the girl. It is significant to note also that in the case cited defendant was apparently well acquainted with the girl and with her parents. The case was reversed, not because of the insufficiency of competent evidence to establish the offense, but because of error in the admission of the testimony in question and also error in the charge of the court.

In the case at bar, the circumstances surrounding the offense charged against the defendant were materially different from those involved in People v. Hicks, supra. Here the parties concerned were not acquainted, and there is nothing in the record to indicate that the complaining witness had ever previously seen the man who sat beside her in the theater. The testimony is undisputed that he placed his hand on her bare leg under her dress, and that he kept it there for some time. The circumstances under which the act was done indicate the motivating purpose and intent. Clearly, the occurrence was not accidental. The fright of the complaining witness at the time and her subsequent complaints to her companion and to her mother are significant. The statute penalizes conduct that is of such character that the common sense of society regards it as indecent and improper. People v. Healy, 265 Mich. 317, 251 N.W. 393;People v. Visel, 275 Mich. 77,...