State v. Kornegger
| Decision Date | 09 February 1953 |
| Docket Number | No. 1,No. 43326,43326,1 |
| Citation | 363 Mo. 968,255 S.W.2d 765 |
| Parties | STATE v. KORNEGGER |
| Court | Missouri Supreme Court |
Morris A. Shenker, St. Louis, for appellant.
J. E. Taylor, Atty. Gen., E. L. Redman, Asst. Atty. Gen., for respondent.
Under Section 563.160 RSMo 1949, V.A.M.S., the defendant, Melvin Donahew Kornegger, was tried and convicted of the offense of molestation of a certain named minor female child of seven years of age, by the taking of indecent and improper liberties with said minor. He was sentenced to four years' imprisonment in the state penitentiary. From that judgment and sentence he has appealed.
In this court defendant now contends that (1) his motion to quash the information should have been sustained, (2) certain evidence was erroneously admitted, (3) the court erred in suggesting that a portion of the testimony be clarified by asking further questions of one witness, (4) Instruction No. 2 was reversibly erroneous, and (5) that the court erred in failing to instruct on the law of lewd and lascivious conduct, and the law of common assault. Defendant does not here contend that the facts of record as proved by the State are not sufficient to constitute an offense under the statute in question.
From the testimony the jury could have found that on April 17, 1951, the prosecutrix, then a seven year old girl, lived with her parents at 5019a Ulena Street in the City of St. Louis, Missouri; that while she and another child were at play on the sidewalk in the block down the street from her home, defendant stopped his automobile at the curb nearby and called the prosecutrix into his automobile; and that opening his trousers in front defendant exposed his person to prosecutrix and had the prosecutrix perform upon him the certain indecent and improper practices disclosed by the record, the legal sufficiency of which, to constitute an offense under the statute, the defendant does not here question.
Defendant told prosecutrix that his name was Don, and that he would return to that same place the next day. Prosecutrix then got out of defendant's car. Defendant then drove away in his automobile. No one knew who he was. Prosecutrix went home and told her mother what had happened, but could not tell anyone who it was that had so mistreated her. Defendant did not return the next day, but did return on the following day, April 19th. When defendant returned to the same place in the same block on April 19th, the prosecutrix again entered defendant's automobile. Defendant again exposed himself to the prosecutrix. The police came immediately and defendant was arrested and taken to the police station. He there made oral confession as to the above.
Appellant's first assignment of error contends that his motion to quash should have been sustained because the information fails to state an offense under the laws of Missouri, and because the statute in question, Section 563.160, violates Section 2 of Article I of the Constitution, V.A.M.S.
The above contentions must be denied. This statute, enacted in 1949, provides that (1) if any person, in the presence of any minor shall indulge in any degrading, lewd, immoral or vicious habits or practices, or (2) shall take indecent or improper liberties with such minor, or (3) shall publicly expose his person to such minor in an obscene or indecent manner, or (4) shall by language, sign or touching said minor suggest or refer to any immoral, lewd, lascivious or indecent act, or (5) shall detain or divert any minor with intent to do any of the above acts, such person shall be considered as annoying and molesting said minor and be punished as therein provided. The instant information charges that on April 17, 1951, in the presence of the named seven year old minor (prosecutrix) defendant took indecent and improper liberties with said minor by exposing to her his private parts and having her rub the same with her hand and did thus annoy and molest said minor, contrary to statute. It is, of course, true that the defendant in a criminal cause has a constitutional right to demand the nature and cause of the accusation against him, and a criminal statute must be sufficiently clear that there can be no doubt as to when such statute is being violated. But we think the statute in question is sufficiently clear and definite in its terms and prohibitions. And it is our view that the information states an offense under the statute. The statute is in nowise violative of any of the provisions of Section 2, Article I of the Constitution.
In his brief defendant has undertaken a discussion of whether the title of the Act in question complies with the requirements of Section 23 of Article III of the Constitution that the subject of a bill shall be clearly expressed in its title. But in neither his motion to quash the information, nor in his motion for new trial has defendant preserved his right to have that question considered in this court upon this appeal.
Defendant next contends that the circuit court erred in permitting the statement and proof by the State that when the prosecutrix again entered defendant's automobile on April 19th, that the defendant 'showed me the same thing over again', that is, that defendant again on that date and occasion exposed his private parts to prosecutrix. Defendant's contention is that the State was thus permitted to make proof of an independent crime as to which defendant was not then charged.
It may be well observed that just two days before, on April 17th, defendant told prosecutrix that he would return to the same place the next day; and that he then drove away in his automobile and neither the prosecutrix, nor anyone else, knew who he was or how to identify him. Defendant did return on April 19th, and he then again committed the identical offense with the identical little seven year old girl, at the identical place the defendant had appointed; and it was then defendant's arrest was effected and his identity established.
Defendant relies upon State v. Lebo, 339 Mo. 960, 98 S.W.2d 695, State v. Palmberg, 199 Mo. 233, 97 S.W. 566, and other similar cases which announce the general rule that proof of the commission of a separate and independent crime by the accused is usually not admissible in evidence upon the trial of a crime separately charged.
That rule, however, is limited by the certain following well-recognized exceptions. Where the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated to each other that proof of one tends to establish the other, such other offenses are widely held under these circumstances to be admissible in proof. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23, 24. And similarly, the exception is often recognized in prosecutions for crimes involving sexual...
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State v. Scown, 46139
...1081, 204 S.W.2d 920, all cited by defendant. But the cases recognize well-defined exceptions to the rule. Thus, in State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 768, this court said: '* * * Where the proof of other offenses may tend to establish motive, or intent, or absence of accident......
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State v. Phillips
...degree. See State v. Williamson, 106 Mo. 162, 170, 17 S.W. 172; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, 884; State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307. Thus this statement tended to prove defendant's participation in the crim......
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State v. Smith
...them liable to punishment. State v. Becker, 364 Mo. 1079, 272 S.W.2d 283; Ex parte Hunn, 337 Mo. 256, 207 S.W.2d 468; State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765. However, impossible standards of specificity are not required. Eastman v. United States, 8 Cir., 153 F.2d 80, certiorari den......
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State v. Bernard, No. 74775
...be part of the "same general criminal enterprise" that led to the sexual assault charged. Buxton, 22 S.W.2d at 637. In State v. Kornegger, 255 S.W.2d 765 (Mo.1953), the defendant committed an act of molestation against the victim. After the incident the defendant told the victim to meet him......