State v. Pedigo

• Decision Date: 19 May 1915
• Citation: 176 S.W. 556,190 Mo.App. 293
• Parties: STATE OF MISSOURI, Respondent, v. HOBERT PEDIGO, Appellant
• Court: Missouri Court of Appeals

176 S.W. 556

190 Mo.App. 293

STATE OF MISSOURI, Respondent, v. HOBERT PEDIGO, Appellant

Court of Appeals of Missouri, Springfield

May 19, 1915

Appeal from Lawrence County Circuit Court.--Hon. Carr McNatt, Judge.

AFFIRMED.

Judgment affirmed.

I. V McPherson and Charles L. Henson for appellant.

John R Miller and William B. Skinner for respondent.

STURGIS J. Robertson, P. J., and Farrington, J., concur.

OPINION

STURGIS, J.

The defendant was convicted and fined one hundred dollars in the Lawrence county circuit court on an information charging him with being guilty of "open, gross lewdness and lascivious behavior, by then and there unlawfully, willfully and publicly, and lewdly and lasciviously, in the sight and presence of others have sexual intercourse with a female, Mattie Doss." The defendant before his trial challenged this information by motion to quash same on the ground that such information charges in one count several separate and distinct offenses, is vague and indefinite and does not inform defendant of the nature and cause of the accusation against him. The overruling of this motion is the first error assigned in this court.

The information is bottomed on section 4729, Revised Statutes 1909, which has been on our statute books since an early date. The information follows the form found in Kelley's Criminal Law & Practice (3 Ed.), p. 843. The principal objection to the information is that it charges two distinct offenses: (1) open, gross lewdness, and (2) lascivious behavior. In State v. Chandler, 132 Mo. 155, 160, 33 S.W. 797, Judge SHERWOOD said that this section of the statute embraces five offenses and, in his enumeration of the same, open, gross lewdness is the third and lascivious behavior the fourth offense. This same judge had previously made the same subdivision of the offenses under this section in State v. Sekrit, 130 Mo. 401, 405, 32 S.W. 977. In State v. Nicholas, 124 Mo.App. 330, 101 S.W. 618, the court held that an information drawn under this section of the statute which charged more than one offense in the same count is bad and should be quashed on motion. The court there enumerates the five offenses embraced by this section, as given by SHERWOOD, J., in the cases just mentioned, and says the information then before the court charged three offenses: "first, with living 'in a state of open and notorious adultery;' second, of 'lewdly and lasciviously' abiding and cohabiting with each other; and, third, 'of open, gross lewdness and lascivious behavior.'" It will be noticed that in this case what is denominated the third offense is "open, gross lewdness and lascivious behavior," thus denominating as one offense what is now claimed to be two distinct offenses. In State v. Coffee, 39 Mo.App. 56, it is said that the statute provides for three classes of offenses and designates the third as "open, gross lewdness, and lascivious behavior between persons married or unmarried."

It may be that for some purposes this statute may embrace five distinct offenses and there may be some distinction between open, gross lewdness and lascivious behavior, but the question for our determination is a narrow one and is whether this information is good as against the motion to quash on the ground of charging more than one distinct offense in a single count of the information. In State v. Bess, 20 Mo. 419, this exact question was before the court on a motion to quash an indictment in one count, there set out, and which charges, among other things, that defendants "were then and there guilty of open, gross lewdness and lascivious behavior, by then and there publicly, lewdly and lasciviously abiding and cohabiting with each other." The court held that, although the attempted charges of living in open and notorious adultery and of lascivious cohabitation were not sufficient in that indictment to charge those offenses, yet, there was one good charge in the language above quoted, saying: "Here we find an offense sufficiently charged in the indictment and sufficiently described under the statute." In State v. Osborne, 69 Mo. 143, an indictment charging that defendants "were then and there guilty of open, gross lewdness and lascivious behavior, and were then and there guilty of open and notorious acts of public indecency, grossly scandalous, by then and there publicly, lewdly and lasciviously abiding and cohabiting with each other" was held good against a motion to quash on the same grounds here presented. The same ruling was made in the case of State v. Hopson, 76 Mo.App. 482. These cases also answer the criticism that the information is vague and indefinite and hold that the charge is sufficiently specific. These cases have not been overruled and are binding on us. On principle it is apparent that the same act or series of acts may and generally do at once constitute open, gross lewdness and lascivious behavior. Lascivious and lewd are synonymous. [State v. Lawrence, 19 Neb. 307, 27 N.W. 126, 129.] We hold that the information is good as against this motion to quash.

Defendant's assignments of error that the court should have sustained his demurrer to the evidence and erred in submitting the case to the jury on the instructions given will be considered together. The first instruction given substantially follows the language of the information and authorizes a verdict of guilty on a finding that defendant did unlawfully and wilfully commit open and gross lewdness and lascivious behavior by publicly, in the sight and presence of others, have sexual intercourse with the woman mentioned.

We agree that the statute denounces as a crime only those "acts which necessarily tend by their openness and notoriety, or by their publicity to debase and lower the standards of public morals." [State v Chandler, 132 Mo. 155, 33 S.W. 797.] To constitute the offense charged there must be present the elements which make the act shameless, aggressive and defiant, rather than furtive and hiding away in shame. We can agree that "the statute denounces open lewdness and notorious acts of public...