State v. Jackson

Decision Date08 July 1963
Docket NumberNo. 49836,No. 1,49836,1
Citation369 S.W.2d 199
PartiesSTATE of Missouri, Respondent, v. Lanny Alfred JACKSON, Jr., Appellant
CourtMissouri Supreme Court

Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.

HOLLINGSWORTH, Judge.

Upon trial by jury in the Circuit Court of Greene County, defendant was found 'guilty of attempted burglary as charged in the information' and his punishment was assessed at five years in the penitentiary. The information alleged that defendant 'on or the 7th day of April A.D. 1962 at the County of Greene and State of Missouri, did then and there wilfully, unlawfully and feloniously and burglariously attempt to break into and enter a certain dwelling owned by S. A. Honeycutt, the same being used and occupied by Romona Kelly, of Springfield, Missouri, and the said Romona Kelly being in the said dwelling at the time of the attempt to feloniously and burglariously break into said dwelling by forcing open a window of said dwelling, with the intent to molest a minor, to-wit: Romona Kelly, age 19 years, by taking improper liberties 1 with said minor, a felony; but he, the said Lanny Alfred Jackson, Jr., did then and there fail in the perpetration of said offense, crime and felony by being intercepted and prevented in executing and perpetrating the said offense as aforesaid, * * *.' His motion for new trial was overruled and allocution was granted. Judgment and sentence ensued in conformmity with the verdict of the jury.

Although represented by counsel at all pretrial, trial and aftertrial proceedings, including perfection of his appeal to this court, no brief has been filed in defendant's behalf. We, therefore, review all of the assignments of error validly set forth in the motion for new trial as required by S.Ct. Rule 27.20 and the portions of the record required by S.Ct. Rule 28.02, 4 RSMo 1959, pp. 4923 and 4925, 1 V.A.M.R., pp. 207 and 235.

Assignment No. 2 asserts error in overruling defendant's motion for directed verdict at the close of all of the evidence, on grounds the state failed to show by competent and substantial evidence defendant's intent to take 'improper liberties with the person of Romona Kelly.' Assignment No. 3 asserts error in the failure of the court to instruct the jury as to the meaning of the words 'improper liberties' as used in the main and only instruction hypothesizing the facts necessarily to be found before the jury could return a verdict finding defendant guilty of the offense with which he was charged. The contention in that respect is that such an instruction was necessary for the guidance of the jury in returning their verdict. Consideration of the foregoing assignments requires a statement of the evidence.

At the beginning of the trial, counsel for the state was permitted to read to the jury Sec. 563.160 RSMo 1959, V.A.M.S., 2 in words following: 'Any person who in the presence of any minor, shall indulge in any degrading, lewd, immoral or vicious habit 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 * * *,' etc. The court thereupon declared to the jury that the statute 'constitutes a felony under the laws of the State of Missouri.'

Romona Dean Kelly testified in behalf of the state: She was 19 years of age on April 7, 1962, at which time she worked for a publishing company and resided in a third floor apartment at 616 N. Jefferson Avenue, Springfield, Missouri. There were three outside windows in the bedroom and one in the kitchenette, 'it is somewhat like a hallway.' There is a window on the east (rear) side of the house. Her bedroom windows had stained glass on the lower portion and curtains shielding any view above the stained portion of the glass. No one can see through the bedroom windows. She never undressed in front of the kitchen window through which she saw the person that night. The kitchen window is covered with a thin curtain through which one could be seen at night. During the evening of that day, April 7, 1962, she visited with her landlady, Mrs. Keele, on the main floor of the apartment house. At about 10:45 p. m., she went directly upstairs from Mrs. Keele's apartment to her apartment, got ready for bed, removed her clothing and put on her night dress in the bedroom and, as she stood in front of a mirror, started to roll up her hair. At that time she heard a noise, as if a screen were falling to the second floor roof. She looked around the corner from the bedroom and saw the reflection of a person outside the kitchenette window. She ran downstairs to tell Mrs. Keele, who called the police. Harold Wilson, who with his wife lived in the basement apartment, and Miss Kelly went outside to investigate. A fire escape ladder extended downward from that window. Colored people lived in a house located to the rear of and across an alley from and fronted toward Miss Kelly's apartment.

Harold Wilson testified in behalf of the state: His wife heard the commotion and called him. He ran through Mrs. Keele's apartment to the outside and saw a negro man on the fire escape. The man came down the fire escape ladder, thence down from the roof by means of a ladder, which defendant or some other person had recently placed on the north side of the rear of the apartment house. Wilson caught that man, the man got loose, Wilson chased him and saw him enter the rear of a house on Tampa Street, a block or more from the apartment house operated by Mrs. Keele. The police came, Wilson took them to the house he saw the man enter. They there arrested defendant. He was the man Wilson had seen come down the fire escape. Miss Kelly's kitchen window light was on and there was a neon light near by; the place was well lighted.

John E. Smith testified: He was on police duty that night and received a call to go to the apartment house where Miss Kelly lived. He shortly thereafter arrested defendant at the house to which he was told defendant had gone. Defendant, when arrested, was breathing heavily and sweat was standing out on his forehead. Defendant, questioned by Smith, denied he knew anything about the matter. He said he had been at the La Petite Bar and that, after leaving there, he had walked around.

Charles Oheim testified: He is and for more than three years had been a detective on the police force. As a part of his duties, he talked with defendant on the morning of April 8, 1962.

'Q. And, did you ask him what he intended to do after he got in there?

'A. Yes, I did. He said he didn't know whether he intended to have sexual relations with the girl that lived there or whether he intended to rob her; he said he didn't know who lived there, although he knew white people lived there.

'Q. He said he did know that white people lived there?

'A. Yes.

'Q. Did he have anything else to say concerning the matter?

'A. Not that I recall, right now.'

Thereafter, as Detective Oheim testified, he, with the knowledge, consent and cooperation of Miss Kelly, inspected the premises in the rear of where she lived. He could clearly see her at any place in the kitchen through the kitchen window. He then went to the house where defendant resided, immediately in the rear of the apartment building in which Miss Kelly lived. He could and did there see Miss Kelly through the sheer curtain that covered the kitchen window, as she walked to the back of that room.

On cross-examination, Oheim testified:

'Q. Well, what did he (defendant) say he was doing up there? * * *

'A. He refused to say what he was doing up there.

* * *

* * *

'Q. Well, what's all this sex talk, then? Where did that come in, who said that?

'A. Well, I did. I questioned him regarding that.

'Q. Those were your questions, then, and not what he said. You asked him if he was up there to have sexual intercourse, did you?

'A. Yes, I did.

'Q. But he didn't say he was up there to have it, did he?

'A. No. He didn't deny it, though.'

Recalled, Miss Kelly further testified: The lights of her apartment were on while she visited her landlady that evening. When she returned to her apartment, she passed in front of the kitchen window through which she could be seen from the outside. She then wore street clothing and did not take off or put on any clothing in front of the kitchen window. As she, standing by the mirror in her bedroom, rolled up her hair, a portion of a person could be seen through the kitchen window by looking 'just right on the corner of the doorway that enters [her] bedroom * * if they looked around the door.' When she heard the screen fall, she was in front of her mirror and 'just looked around the corner,' after possibly taking one step to look around.

The evidence in behalf of defendant was, as follows: William Goodenkoff, who operated the La Petite Cocktail Lounge, on the night of April 7, 1962, testified: Defendant, who was formerly employed by him and was one of the best musicians in Springfield, came into the lounge after nine o'clock that night, asked if he could join the band, which is a privilege generally extended to former employees, such as defendant. Goodenkoff permitted him to do so. After defendant had played two numbers and had sung a song, Goodenkoff noticed that he was too intoxicated to play, asked him to leave and, defendant being unsteady on his feet, Goodenkoff escorted him out. It was then after ten o'clock.

Defendant testified: He was 31 years of age, born and reared in Tennessee, attended school to the 11th...

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