State v. Hoffman

• Decision Date: 21 February 1939
• Docket Number: 36244
• Citation: 125 S.W.2d 55,344 Mo. 94
• Parties: The State v. Irvin Hoffman, Appellant
• Court: Missouri Supreme Court

125 S.W.2d 55

344 Mo. 94

The State v. Irvin Hoffman, Appellant

No. 36244

Supreme Court of Missouri

February 21, 1939

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Affirmed.

Philip A. Foley for appellant.

(1) The evidence in this case was insufficient to justify the submitting of the case to the jury; and the defendant's instruction in the nature of the demurrer at the close of the State's case should have been given. Sec. 4022, R. S 1929; State v. Higgs, 29 S.W.2d 75; State v Miller, 14 S.W.2d 621; State v. Simon, 295 S.W. 1076; State v. Tate, 47 S.W. 792; 16 C. J., p. 80. (2) The court erred in refusing to permit defendant's attorney to ask the panel of jurors upon their voir dire examination if they would require the State to prove every element of the offense charged beyond a reasonable doubt. Mo. Const., Art. II, Sec. 22.

Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.

(1) The information filed in the cause follows the language of the statute and properly charged appellant under Section 4022, Revised Statutes 1929, with the crime of enticing a female child. Sec. 4022, R. S. 1929; State v. Miller, 322 Mo. 210, 14 S.W.2d 621; 35 C. J. 704. (2) The verdict is in proper form. State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 962. (3) The evidence was sufficient to submit the case to the jury and the demurrer was properly overruled. State v. Miller, 322 Mo. 210, 14 S.W.2d 621; 35 C. J. 704; State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 962. (4) It is discretionary with the court the extent to which jurors may be examined upon their voir dire examination. State v. Lewis, 20 S.W.2d 529.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Appellant was tried under an indictment for a violation of Section 4022, Revised Statutes 1929 (Mo. Stat Ann., p. 2828). He was convicted and sentenced to two years' imprisonment in the penitentiary, whereupon he appealed. Section 4022, supra, reads as follows:

"Every person who shall maliciously, forcibly or fraudulently lead, take or carry away or decoy or entice away any child under the age of twelve years, with the intent to detain or conceal such child from its parent, guardian or other person having the lawful charge of such child, shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding twenty years, or in a county jail not less than six months, or by fine not less than five hundred dollars."

The State's evidence disclosed the following: On February 2, 1937, at about 3:30 P. M., Betty Jean Schneider and Doris Shoemake, ages about nine and ten years, and other children were on their way home from school. They were walking north on Spoede Road in St. Louis County, Missouri. A car passed them and stopped some distance north, where a man, identified as appellant, got out. His actions seemed to indicate that he was working on the engine of the car. When the two girls, above named, reached the point in the road where the car was, appellant walked toward them. He attempted to catch Doris Shoemake, but she ran and eluded him. He then pursued Betty Jean Schneider, picked her up and placed her in the car saying: "Get in there." Betty Jean's school books were scattered along the road. Appellant then started to drive away. A Mr. Piotraschke, a deputy constable of the county, was driving north on this road at the time and was approaching the point where the above related happenings occurred. His suspicions were aroused and he sounded the siren on his car and attempted to compel the appellant to stop by forcing him off the road. While this was going on Betty Jean jumped out of appellant's car and escaped. Appellant fled with the constable in close pursuit. After a chase over various roads, the constable, with the aid of other officers who joined in the race, apprehended appellant at a street crossing where cars were waiting for a stop light to change in their favor. The two children, above named, were witnesses for the State and related what occurred at the time. Each identified appellant. The record disclosed that Betty Jean Schneider was asked questions concerning the condition of appellant's clothing. She testified that his trousers were down. When pressed for further and definite answers she began to cry and the questioning ceased. Doris Shoemake was also questioned along the same line, and while her testimony was more definite, many questions remained unanswered. The facts elicited, while meagre, clearly indicated that appellant's intentions were licentious. Appellant offered no evidence and on this appeal only two points were briefed.

Appellant's principal contention is, that the evidence was insufficient to sustain a conviction under Section 4022, supra. Appellant in his brief states:

"Not one scintilla of the testimony indicated this defendant's specific intent to do any of the acts denounced by Section 4022, R. S. Mo., 1929. Where a SPECIFIC INTENT is necessary, as in the instant case, the existence of such an intent cannot be implied as a matter of law from the doing of an act so as to throw the burden of negativing it upon the defendant, but must be proved by the State as a matter of fact. . . .

"To violate the Statute, the child must have been taken away with the intent to detain or conceal such child from its parent, guardian, or person lawfully in charge of the child, and for that purpose only, and no other."

The above section was considered by this court in State v. Miller, 322 Mo. 210, 14 S.W.2d 621. In that case the defendant, Miller, forced a young girl under seven years of age into his car, while the child was on her way home from school, in the city of St. Louis. Miller took the child to a quarry, a rather secluded spot, and detained her for about two hours. The proof in that case showed beyond doubt that Miller's intentions in taking the child were for the purpose of taking indecent liberties with her. This court sustained the conviction. Judge Henwood, then a Commissioner, wrote the principal opinion which was concurred in by Higbee and Davis, Commissioners; Walker and White, Judges. Judge White concurred in a separate opinion. Blair, P. J., wrote a dissenting opinion. In Judge White's concurring opinion we find the following:

"In this case the child, seven years of age, was forcibly taken away and detained for two hours. The kidnaping statute, Section 3268, precedes this. The statute under consideration was evidently intended to cover any case of taking away and detaining, which would not come within the terms of the kidnaping statute. This section, No. 3270, places no limit of time upon the detention or concealment, nor does it require that the child taken away shall be detained. It requires only that the child shall be taken away with the intent to detain it. That intent is manifest in this case because the child was in fact detained from her parents for two hours. The only intent required to be proven in the terms of the statute, as applied to this case, is the intent to detain. The child was returning home from school at the time the defendant took her in his automobile, as described in the evidence."

After due consideration we feel that Judge White in his concurring opinion reached the correct conclusion. We are fortified in this by the case of People v. Diekelmann (1937), 367 Ill. 372, 11 N.E.2d 420, where a conviction was sustained under a statute similar to our statute. The facts here, strange to say, are almost identical. As to appellant's contention, that the evidence to sustain a conviction must show 'an intent to conceal such child from its parents, and for that purpose only, and no other,' the Illinois Supreme Court in the above case answered as follows:

"What has just been said is an answer to the...