State v. King

• Decision Date: 08 July 1957
• Docket Number: No. 1,No. 45573,45573,1
• Citation: 303 S.W.2d 930
• Parties: STATE of Missouri, Respondent, v. Everett KING, Appellant
• Court: Missouri Supreme Court

Page 930

303 S.W.2d 930

STATE of Missouri, Respondent, v. Everett KING, Appellant.

No. 45573.

Supreme Court of Missouri, Division No. 1.

July 8, 1957.

Rogers & Rogers, G. W. Rogers and Clyde Rogers, Gainesville, for appellant.

John M. Dalton, Atty. Gen., and Richard W. Dahms, Ast. Atty. Gen., for respondent.

DALTON, Judge.

Defendant was convicted of molesting a minor and sentenced to imprisonment in the state penitentiary for a period of two years. Section 563.160 RSMo 1949, V.A.M.S. He has appealed and, first, assigns error on the court's action in overruling his motion to dismiss on the ground that the statute upon which the prosecution is based is unconstitutional.

The original information contained two counts. The first count charged an attempt to commit the offense commonly referred to as 'statutory rape.' See Section 559.260 and Section 556.150 RSMo 1949, V.A.M.S. The second count (with the child's name and caption and signature omitted) is as follows: 'And the Prosecuting Attorney aforesaid, further informs the court that the said Everett King, on the 13th day of June, 1955, in the County of Ozark and State of Missouri, did then and there unlawfully and feloniously suggest and refer to a certain immoral, lewd, lascivious and indecent act, by then and there exposing his private to one _____, a female child, of the age of ten years, and by then and there suggesting to her that he have sexual intercourse with said child, and by touching her; contrary to the statutes in such cases made and provided and against the peace and dignity of the state.' Both counts of the information charged an offense committed by the same person against the same ten year old female child on the same date. The information was filed in the Circuit Court of Ozark County, but the cause went on change of venue to Douglas County, where the trial was conducted.

The motion to dismiss was based on three separate grounds: (1) that the information was an attempt to prosecute defendant for a violation of two separate criminal statutes in one prosecution, since the information charged defendant with two different felonies; (2) that in attempting to charge defendant with the offense of molesting a minor, the information failed to charge any offense under the law of this state; and (3) that the statute, Section 563.160 RSMo 1949, V.A.M.S., is 'broader than the title and for that reason is unconstitutional, being in violation of Article 3, Section 23, of the Constitution of Missouri, 1945 * * *.' See 42 V.A.M.S. Supreme Court Rule 25.06. The motion to dismiss was overruled and defendant was arraigned and entered a plea of not guilty to each count of the information. At the close of the state's evidence the state elected to proceed on the second count and the information was amended accordingly. Defendant's motion to dismiss was refiled and again overruled.

The sufficiency of the evidence to sustain the charge submitted to the jury is not questioned. Only a brief statement is required. Defendant was 72 years of age, married and the father of eleven children, all married. The prosecuting witness, a female child ten years of age, resided with her parents on a farm adjoining that of the defendant in Ozark County. It is sufficient to say that the prosecuting witness testified that on June 13, 1955, on her home farm in Ozark County, in the absence of her parents, the defendant met her by a spring branch at a division fence between the farms, and hugged and kissed her, exposed his 'personal parts' to her, placed his finger in her 'personal parts' and earnestly solicited sexual intercourse with her. She left him and promptly reported the matter to her grandmother. There was also evidence that defendant made admissions to the Sheriff of the County to the effect that he had hugged and kissed the child and solicited sexual intercourse, but she had said 'no.'

Defendant testified at the trial and denied the charge against him and denied the alleged admissions, but said he had waved at the child and she waved back and he had met and shook hands with her across 'a woven wire fence with about three wires on it.' He said, 'Well, we both stood right agin the fence and she reached up and * * * put her arms around my neck. * * *.' He denied any misconduct on his part.

As stated, appellant contends the statute is unconstitutional because the Act is broader than the title. Appellant relies on Article III, Section 23, of the Missouri Constitution 1945, V.A.M.S., as follows: 'No bill shall contain more than one subject which shall be clearly expressed in its title, except bills enacted under the third exception in section 37 of this article and general appropriation bills, which may embrace the various subjects and accounts for which moneys are appropriated.' And see Article IV, Section 28, Constitution of Missouri 1875, which is the same in substance.

Before applying this constitutional provision to the questioned statute, we may say that, 'It is uniformly held that this provision should be liberally construed, that the title need only indicate the general contents of the act, and, if the contents of the act fairly relate to and have a natural connection with the subject expressed in the title, they fall within the title.' State ex rel. Garvey v. Buckner, 308 Mo. 390, 272 S.W. 940, 941. 'We resolve the doubt, if any, in favor of validity, if the challenged legislation is germane and relates either directly or indirectly to the main subject.' State ex rel. Lorantos v. Terte, 324 Mo. 402, 23 S.W.2d 120, 121(1). The burden of proof to establish the unconstitutionality of a statute rests upon the party questioning its constitutionality. Graves v. Purcell, 337 Mo. 574, 85 S.W.2d 543, 549. Every reasonable presumption is made in favor of constitutionality. Varble v. Whitecotton, 354 Mo. 570, 190 S.W.2d 244, 247. A statute will not be held unconstitutional, unless it clearly and undoubtedly contravenes some constitutional provision. Hickey v. Board of Education of City of St. Louis, 363 Mo. 1039, 256 S.W.2d 775, 778.

The statute in question was passed in 1949. Senate Bill 157; Laws of Missouri 1949, p. 249. The title and act are as follows: 'An Act making it unlawful for any person to annoy or molest, detain or divert any minor and providing a penalty therefor. Be it enacted by the General Assembly of the State of Missouri, 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 * * *.'

Appellant says the Act prohibits five distinct sets of circumstances. Appellant reviews the several provisions of the Act and then argues that 'all of these acts or set of circumstances are not embraced within the title and for that reason the Act is unconstitutional.' (Italics ours.) Appellant's argument proceeds as follows: 'The title to the Act makes it unlawful for any person to annoy or molest, detain or divert any minor, and providing a penalty therefor. The common ordinary meaning of annoy and molest means to incommode, harm, injure, interfere with or meddle with unwarrantably so as to injure or disturb. The synonyms are bother, pester or tease. This indicates that the Act prohibits any person in the presence of any minor doing anything which would injure or harm, bother, pester or tease said minor. In other words, one would believe from reading the title to the Act that acts injuring the minor are the things prohibited thereby.' (Italics ours.)

While appellant says that all of 'five distinct sets of circumstances prohibited by the Act are not embraced within the title,' no reference is made to any act or circumstance not included. Appellant also says 'the law includes many things not included in the title to the Act,' but again nothing is specified. Appellant's final argument on this point is that 'it is apparent that the Legislature intended to prohibit violations of sexual relations and practices with minors,' but didn't do so, since 'the Act provides that any person who shall indulge in any degrading or vicious habits or practices in the presence of a minor shall be punished.' In this manner appellant arrives at the conclusion that the Act is broader than the title. We think appellant's own argument tends to show the title is broader than the act.

The purpose of the constitutional provision, supra, has been stated as follows: 'First, to prevent hodge podge or 'log rolling' legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation and which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered in order that they have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.' See State ex rel. United Railways Co. v. Wiethaupt, 231 Mo. 449, 459, 133 S.W. 329, 331; Southard v. Short, 320 Mo. 932, 8 S.W.2d 903, 905.

In the case of Edwards v. Business Men's Assur. Co., 350 Mo. 666, 168 S.W.2d 82, 93, after reviewing Missouri authorities at some length, the court said 'The constitutional provision simply requires that the title shall give information of the general subject of the act. While it may be so general in its terms as to omit matters germane to the principal features of the statute, if it sufficiently indicates the...