State v. Tandy, 51477
| Decision Date | 14 March 1966 |
| Docket Number | No. 2,No. 51477,51477,2 |
| Parties | STATE of Missouri, Respondent, v. Jack Noble TANDY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Sp. Asst. Atty. Gen., Kansas City, for respondent.
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
This is an appeal from a conviction of molesting a minor. Section 563.160, RSMo 1959, V.A.M.S. At a hearing out of the presence of the jury, the court found the defendant had been previously convicted of a felony and the punishment was assessed pursuant to the Habitual Criminal Act. Section 556.280. The defendant's motion for a new trial was overruled and the court sentenced him to five years' imprisonment. The prosecuting attorney filed a petition charging the defendant with being a sexual psychopath within the meaning and purview of §§ 202.700 to 202.770, but the report of the physicians appointed to examine the defendant did not substantiate the charge and he petition was overruled. Since none of the assignments of error relate to this charge, it need not be noticed further.
The defendant, age 63, did not testify or offer any evidence in his behalf. The state's evidence tends to prove that on August 14, 1964, in the afternoon, the prosecutrix, a girl, age 9, to whom we shall refer as Christine, with her sister, age 6, and her brother, age 4, were playing on the sidewalk in front of their home when an automobile stopped at the curb. The man who was driving was not then known to the children but was later identified as the defendant. He opened the door on the curb side and the brother went over to the car. Christine called to him to come back and when he refused to do so she and her sister went after him. The defendant asked them to get in the automobile and said he would take them around the corner and get them some candy. Christine replied that her mother did not allow her to go with strangers, but the defendant pulled the girls into the car. The brother tried to get in the car but the defendant said he just wanted the girls. The sister sat in the middle of the front seat and Christine on the right or outside. Both girls were wearing shorts with a shirt and an undergarment.
Christine testified that the defendant 'started playing around with us between the legs' while the were seated in the car; that he 'reached up underneath' the legs of their shorts and under her panties; that when he did so the defendant 'put his hand where you go to the bathroom' that, at the defendant's suggestion, the sister stood up to see some trinkets he had in the car and he put his hand under the sister's shorts a second time. The defendant offered Christine a silver dollar; she was scared and broke away and ran into the house followed by her sister and brother. Christine further testified that while she was in the automobile she noticed that the defendant's breath smelled bad and added: 'My grandpa, he drinks all the time, and I know the smell'; also the defendant was 'kind of fumbling around'. Neither of the girls were injured nor were their clothes torn or damaged.
When Christine ran into the house and told her mother what happened, the mother went out front in time to see the rear of defendant's car as it was driven away. A brother of the mother came by and accompanied by the girls toured the neighborhood but could not find the defendant's automobile. A short time after they got back, the defendant came by again and stopped on the opposite side of the street. Christine pointed out the car and when it moved on, the brother followed, caught up with the car, got the license number and talked to the defendant who said he did not know anything about the charge and that somebody was mistaken. The defendant appeared to have been drinking. The police took the defendant into custody later that night. The next day Christine picked him out from a line-up of four men at the police station. She identified him again at the trial. To the extent necessary, additional evidence will be discussed in connection with the points raised.
The defendant's first contention is that the trial court erred in fialing to indicate prior to the expiration of the time allowed for filing the motion for new trial what sentence the court intended to impose. The ground stated in the motion for new trial was that: 'The Court erred in failing to indicate what sentence would be imposed by the Court.' After the motion for new trial was overruled, the court announced that the punishment was fixed at five years' imprisonment. The court then granted allocution and the defendant having nothing to say and not showing legal cause why sentence should not be imposed, the court proceeded with the formal sentencing.
In support of this contention, the defendant relies on State v. Grant, Mo., 380 S.W.2d 799, and State v. Rizor, 353 Mo. 368, 182 S.W.2d 525. In the Rizor case, the punishment was fixed by a jury and in response to a claim that the punishment was excessive this court on appeal held that relief on the ground of excessiveness was generally sought in the motion for new trial. Both Grant and Rizor were considered at length in the recent case of State v. Watson, Mo., 400 S.W.2d 129 (decided February 14, 1966), a case under the Habitual Criminal Act wherein the trial court did not indicate the sentence to be imposed prior to the expiration of the time for filing the motion for new trial; the defendant on appeal contended that he was thereby deprived of the opportunity to question the validity or the excessiveness of the sentence in his motion for new trial. The Watson opinion states that: 'The Grant case holds that it was proper to indicate to the parties at that time what the punishment would be, but it does not hold it would be prejudicial error to fail to do so before the motion for new trial was filed.' The Watson case held the sentence was not excessive, that prejudicial error was not shown and affirmed the judgment.
In the case at bar there is no claim that the sentence was excessive or that prejudice resulted because of failure to indicate sooner the sentence intended. The court did indicate the intended sentence prior to allocution and the defendant at that time had an opportunity to state any objections he had. On November 20, 1957, the defendant entered a plea of guilty to a charge of molesting a minor and was sentenced to a three-year term of imprisonment. This is the prior conviction on which the Habitual Criminal Act was invoked. Our examination of the record discloses no showing of prejudice. The claim of error is denied.
Next the defendant contends that the amended information was insufficient and did not adequately notify the defendant of the charge against him. The amended information charges that the defendant 'on the 14th day of August, 1964, * * *, did then and there unlawfully and feloniously molest and annoy a minor child, to-wit: Christine * * * of the age of Nine (9) years by then and there touching said minor in a lewd and lascivious manner and by taking indecent and improper liberties with said minor; * * *.' Section 563.160 sets out five kinds or categories of acts or conduct which shall constitute annoying or molesting a minor. The information is based on two of these kinds of prohibited behavior. One of these specified in the statute is any person who shall 'by language, sign or touching such minor, suggest or refer to any immoral, lewd, lascivious or indecent act'; the other is taking 'indecent or improper liberties with such minor'. To sustain this contention, the defendant cites the cases of Dameron v. State, 8 Mo. 494, State v. Jackson, Mo., 369 S.W.2d 199, State v. Maher, 232 Mo.App. 998, 124 S.W.2d 679, and State v. Daegele, Mo., 302 S.W.2d 20. These decisions have been considered, but they are not controlling or persuasive of the point in question.
The defendant in a criminal case has a right to demand the nature and cause of the accusation, and the indictment or information must be sufficiently definite to enable him to prepare his defense and to constitute a bar to further prosecution for the same offense. Art. 1, § 18(a), Constitution of Missouri 1945, V.A.M.S. As a general rule, however, it is sufficient to frame the indictment or information in the language of the statute. In this case the information begins with the statement of the ultimate fact that the defendant did unlawfully and feloniously molest and annoy a minor child. The specifications that follow are that he did so by touching said minor in a lewd and lascivious manner and by taking indecent and improper liberties with her. These allegations follow the language of the statute and are sufficient to satisfy constitutional requirements. State v....
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