State v. Saibold

Citation34 So.2d 909,213 La. 415
Decision Date16 February 1948
Docket Number38782.
CourtSupreme Court of Louisiana
PartiesSTATE v. SAIBOLD.

Rehearing Denied March 22, 1948.

Appeal from Juvenile Court, Parish of Orleans; Anna Judge Veters levy, judge.

Eugene Stanley, of New Orleans, for appellant.

Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst Atty. Gen., and Herve Racivitch, Dist. Atty. and Geo McCulloch and Alexander Ralston, Jr., Asst. Dist. Attys., all of New Orleans, for appellee.

McCALEB Justice.

Appellant was charged, tried and convicted of violating Article 81 of the Criminal Code, Act No. 43 of 1942, which denounces indecent behavior with juveniles. He was sentenced to serve six months in the Parish Prison and is appealing from the conviction and sentence on various grounds, set forth in two bills of exception taken to the action of the trial judge in overruling a motion in arrest of judgment and a motion for a new trial.

The motion in arrest of judgment is levelled at the sufficiency of the charges contained in the bill of information and the constitutionality of the statute. Three contentions are made by appellant as bases for the maintenance of the motion.

The first contention is that the bill of information merely states a conclusion of law and does not allege the offense denounced by Article 81. That Article reads in part: 'Indecent behavior with juveniles is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, with the intention of arousing or gratifying the sexual desires of either person. * * *'

The bill of information, in substance, charges 'that one Carl G. Saibold (w), being over the age of seventeen years, * * * on the first day of June 1947, * * * did then and there violate Article 81 of the Louisiana Criminal Code, relative to indecent behavior with juveniles, by placing his hands on the person of one Marline Menner (w) 11 yrs. with the intention of arousing the sexual desires of him, the said Carl G. Sailbold, * * * contrary to the form of the statute * * *'.

It is said that, since the gravamen of the crime is the commission of a lewd or lascivious act upon the person or in the presence of any child, no offense is stated in the bill because it does not allege that appellant committed a lewd or lascivious act.

The proposition does not impress us. The bill sets forth the act committed by appellant and charges that it was violative of the statute. This is proper pleading. It is not sacramental that the indictment or information be phrased in the language of the statute if it states every fact and circumstance necessary to constitute the offense.

See Article 227, Code of Criminal Procedure.

The next point raised by appellant is that Article 81 is unconstitutional [1] because the age limit 'seventeen' used therein is so indefinite and meaningless that it is impossible to determine whether the law applies to persons over the age of seventeen years, months, days or seconds.

The contention is without merit. It would be absurd to hold that the lawmaker, in speaking of the commission of an offense by anyone 'over the age of seventeen' upon any child 'under the age of seventeen', was referring to anything other than the age in years of those involved. While criminal statutes are strictly construed so as not to include persons or acts not specifically set forth, this does not mean that the court will blind itself to the obvious.

To sustain the provision of appellant would require complete disregard of the provisions of Article 3 of the Criminal Code, which declares: 'The articles of this Code can not be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.'

Appellant's chief assault upon the constitutionality of Article 81 is that the statute fails to define the crime of indecent behavior with juveniles--that is, it does not explain the meaning of a lewd of lascivious act, thereby requiring the court to define it and thus usurp the function of the Legislature. Our recent decision in State v. Truby, 211 La. 178, 29 So.2d 758, is relied on as complete authority for his position.

In the cited case, we were confronted with an attack on Article 104 of the Criminal Code which defined the crime of keeping a disorderly house as 'the intentional maintaining of a place to be used habitually for any illegal or immoral purpose.' We found that, insofar as the Article sought to prohibit the maintaining of a place used habitually for an 'immoral' purpose, it was unconstitutional forasmuch as the word 'immoral' was of such broad import that, standing alone or in association with the word 'purpose', it was impossible to declare, with any degree of certainty, the type of conduct the Legislature sought to prohibit. We recognized that vast differences of opinion exist as to the sort of behavior which might be considered immoral and, hence, in each case [2] the judge or the jury would be required to apply his or its own conception of morals to the facts involved; thus stepping out of their judicial roles to assume legislative powers.

But the opinion in the Truby case does not sustain appellant's attack upon Article 81 for the reason that we view the language of the statute to be sufficient to define the offense therein denounced. It is true that the word 'lewd', when used alone, is of a very broad scope. It is defined by Webster's New International Dictionary as 'lay; * * * unlearned; unlettered; * * * wicked; lawless; bad; vicious; worthless; base' but it is also defined to be 'lustful; libidinous; lascivious; unchaste * * *'. And the word 'lascivious' is defined as 'wanton; lewd; lustful * * * tending to produce voluptuous or lewd emotions'. Hence, it is seen that when the term 'lewd' is associated with the word 'lascivious' it connotes actions or gestures of a lustful and lecherous nature. [3]

The statute specifies indecent behavior to be the commission of a lewd or lascivious act 'with the intention of arousing or gratifying the sexual desires' of either the actor or the juvenile. The necessity that the act he committed with the intention of arousing sexual desires gives to the words 'lewd or lascivious' an even more confined meaning if, indeed, any added explanation were required. And, to settle any possible doubt, the drafters of the Code have succinctly stated in a footnote the type of conduct the article is designed to cover. The comment states: 'The article is intended to apply to behavior which falls short of sexual intercourse, carried on with young children. It is broader in scope than the former statute, [Act No. 65 of 1926] in that it includes children of both sexes, and the offender could be of either sex. The language is taken in part from the Proposed Illinois Penal Code (1937) � 32. The article also covers indecent sexual displays in the presence of children under the age of seventeen.'

We hold that Article 81 of the Criminal Code is invulnerable to attack on the ground of unconstitutionality.

In a motion for a new trial, appellant asserts (1) that there was no proof offered to show that he was a person over seventeen years of age; (2) that the State failed to prove his guilt beyond a reasonable doubt; (3) that the lower court erred in accepting the testimony of the eleven year old girl involved, as her statement is so contradictory as to warrant the conclusion that she is unworthy of belief; (4) that the court erred in permitting a six year old child to testify as a witness when it was manifest, from her age and appearance, that she was incompetent; (5) that the court erred in not believing his testimony in which he denied the acts charged against him and (6) that it erred in refusing to give full credit to evidence of his good moral character.

Although set forth as six different grounds of error of fact and law committed by the trial judge, all of the complaints contained in the motion for a new trial, except Nos. 1 and 4, are really the same and may be considered as one--that is, that the judge erred in believing the witnesses for the State and in resolving that guilt had been proven beyond a reasonable doubt. Accordingly, we turn immediate attention to grounds 1 and 4 before discussing the facts of the case.

The first ground, that there was no proof offered to show that appellant was a person over seventeen years, is wholly without merit. Testifying...

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29 cases
  • State v. Christine
    • United States
    • Louisiana Supreme Court
    • November 9, 1959
    ...term 'lewd' is associated with the word 'lascivious' it connotes actions or gestures of a lustful and lecherous nature." State v. Saibold, 213 La. 415, 34 So.2d 909, 911. In State v. Kraft, 214 La. 351, 37 So.2d 815, 816, we held that there was nothing in the context of the second paragraph......
  • State v. Breedlove, 51,055–KA
    • United States
    • Court of Appeal of Louisiana — District of US
    • January 11, 2017
    ...under the age of 17 years; and, (2) that the defendant intended to arouse or gratify his own sexual desires. Id .In State v. Saibold , 213 La. 415, 34 So.2d 909 (1948), the Louisiana supreme court stated that lewd or lascivious behavior "connotes actions or gestures of the lustful and leche......
  • State v. Zihlavsky
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 1, 1987
    ...Partners" and that defendant would pick him up and take him to defendant's house where he sometimes spent the night. In State v. Saibold, 213 La. 415, 34 So.2d 909 (1948), evidence that Saibold had lived in the city for many years, and had two sons, one of whom was married and the other in ......
  • Briggs v. North Muskegon Police Dept.
    • United States
    • U.S. District Court — Western District of Michigan
    • May 5, 1983
    ...727 (1950); and, in a different sense, as lay, unlearned, unlettered, wicked, lawless, bad, vicious, worthless, base, State v. Saibold, 213 La. 415, 34 So.2d 909 (1948). It is evident that the term "lewd" has no commonly accepted definition. A serious argument could be made that the statute......
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