State v. Atkinson
| Decision Date | 12 December 1955 |
| Docket Number | No. 2,No. 44572,44572,2 |
| Parties | STATE of Missouri, Respondent, v. Roscoe ATKINSON, Appellant |
| Court | Missouri Supreme Court |
E. V. Kell, West Plains, John A. Johnson, Ellington, Rogers & Rogers, G. W. Rogers, Clyde Rogers, Gainesville, for appellant.
John M. Dalton, Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.
Appellant Roscoe Atkinson (hereinafter referred to as defendant) was indicted in Howell County for an offense allegedly there committed on or about August 6, 1953. Upon his application for a change of venue, the case was transferred to the Circuit Court of Oregon County where, upon trial, the jury returned a verdict of guilty, and fixed his punishment at imprisonment in the penitentiary for a term of two years. Judgment was entered, and sentence pronounced accordingly, from which this appeal was taken after an unavailing motion for a new trial.
The charging portion of the indictment is, in substance, that defendant did 'unlawfully, feloniously, lewdly and wickedly take indecent liberties' with a certain named 'minor boy of the age of thirteen years by then and there wickedly, lewdly and feloniously' copulating sexually with said minor, both per os and per anum, the manner of the commission of such unnatural and perverted acts being fully particularized and set forth. It thus appears that the 'indecent liberties' charged against defendant consist of acts of sodomy.
Section 563.160 RSMo 1949, V.A.M.S. reads as follows: 'Any person who in the presence of any minor, shall indulge in any degrading, lewd, immoral or vicious habits or practices; or who shall take indecent or improper liberties with such minor; or who shall publicly expose his or her person to such minor in an obscene or indecent manner; or who shall by language, sign or touching such minor, suggest or refer to any immoral, lewd, lascivious or indecent act, or who shall detain or divert such minor with intent to perpetrate any of the aforesaid acts, shall be considered as annoying or molesting said minor and shall upon conviction be punished by imprisonment in the penitentiary for a period not exceeding five years, or be punished by imprisonment in the county jail for a period not exceeding one year, or be fined in a sum not to exceed five hundred dollars or by both such fine and imprisonment.' We have been unable to find a counterpart of this statute. It is broader than any of the several similar statutes we have examined. Indeed, this enactment seems to have borrowed the language of some of its provisions from a somewhat similar statute in one state, and others from another, and so on, but without incorporating one or more features which are common to substantially all of such foreign statutes, the result being that ours is not a composite of the other statutes, and it is unlike any of the several from which it was been adapted.
Instead of protecting minors as a class, as ours does, most of the other statutes have specific age limitations applicable either to the person offended against, or the person offending, or both, and require a specific intent as well. For example: In California, the words of the statute are, 'a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child,' Penal Code, Sec. 288; and in North Dakota, 'any child' Sec. 9562a, Comp.Laws Supp.1925, which has been held to mean any human being under the age of 18 years, State v. Flath, 59 N.D. 121, 228 N.W. 847; in the District of Columbia, 'any child of either sex, under the age of sixteen years' (with the same intent as specified in the California Act), D.C. Code Ann. Sec. 22-3501. The Oklahoma statute 21 O.S.1951 Sec. 1123, is directed against lewd or indecent proposals or acts by an adult as to a child under 14. Our statute is to be further differentiated from the others in that it does not purport to exclude from its operation acts constituting other offenses (as do all of those we have mentioned above), particularly such felonies as sodomy, rape, etc. Apparently none of the Missouri cases arising under this statute, and heretofore decided, with the single exception of State v. Chittim, Mo., 261 S.W.2d 79, 80, involved acts which in and of themselves amounted to the commission of another felony. The conviction in the Chittim case was reversed for error in an instruction, but the question of whether the facts brought the case within the purview of the very section under which the prosecution was brought, Sec. 563.160, was expressly reserved 'until it is directly raised and briefed.' If rape and sodomy are comprehended within the terms of Sec. 563.160, then it would seem that for all practical purposes the punishment for those offenses will have been reduced where the victim is a minor, but, on the other hand, it could well be argued that the age of consent will have been increased, perhaps to 21 years. Whether such was the legislative intent would seem to be extremely doubtful, and in the absence of briefs and argument on the question, we feel constrained to again reserve the question, but call attention to the hiatus.
In view of the foregoing as well as the disposition we find it necessary to make of the case, we do not pass on the state's suggestion that 'the indictment contains but one charge, that of sodomy.' If this be true, it would be necessary to disregard a very substantial portion of the indictment as surplusage. In passing, we note the punishment authorized by the instructions was that prescribed for molesting a minor, and not that for sodomy. The jury found defendant 'guilty as charged,' thus introducing further confusion if the state's theory, just noticed, be correct. For present purposes, it is sufficient to say that if acts of sodomy, when committed upon or with a minor, are to be regarded as mere indecent liberties, and hence constitute the offense of molestation under Sec. 563.160, then the ground of the 'motion to quash' because the indictment charges or attempts to charge in one count molestation of a minor and also sodomy, one a felony and the other a graded or mixed felony, was properly overruled.
The other ground of the so-called 'motion to quash' (a pleading expressly abolished by Rule 25.05, 42 V.A.M.S., but which in this instance we treat as a motion to dismiss) was that the indictment was not 'signed by the foreman of the grand jury', as required by Rule 24.01. This objection is based on the circumstance that in returning the indictment the practice formerly obtaining under Sec. 545.040 was followed; that is, the foreman endorsed it "a true bill" with his name signed thereto. That section has been supplanted by Rule 24.01 which provides that in addition to being signed by the prosecuting attorney, 'the indictment shall also be signed by the foreman of the grand jury.' The endorsement and signature in question appear on the face of the instrument immediately below the signature of the prosecuting attorney, but on the left side and near the bottom. The foreman's signature was nonetheless a signing of the indictment notwithstanding the presence of the words "a true bill" immediately...
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...for a separate punishment * * * even though they are of the same nature as the one charged in the indictment.' Also see State v. Atkinson, Mo., 285 S.W.2d 563. This is not the situation where one assaults one person and several others are injured in the fray (People v. Lopez, 135 Cal. 23, 6......
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... ... In explanation of our answer, a brief review of the increasingly liberal attitude ... Page 766 ... toward the admission of evidence regarding the sexual conduct of defendants charged with sexual abuse of children is in order. In State v. Atkinson, 285 S.W.2d 563 (Mo.1955), a conviction of child molestation was reversed because of the admission of testimony by a boy other than a victim of the charged crime that defendant had done the same thing to him. This same defendant was later convicted of sodomy upon another 15-year old boy. This ... ...
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