State v. Chapple
State v. Chapple
Opinion of the Court
Appellant, then age twenty, was convicted, as charged, of molesting a minor, a female person of the age of eighteen years, under § 563.160 RSMo 1959, V.A.M.S., and the jury assessed his punishment at two years imprisonment.
On this appeal the contention is first that § 563.160 “did not contemplate, nor cover, the factual situation presented in this case, and the acts proven did not violate this statute.”
Wanda Irene Lathrop, who was eighteen years of age when the alleged offense occurred on November 15, 1968, lived in a rented room at 1754 South Wedgewood in Springfield, Missouri. She worked at Litton Industries. On the evening of the 15th she met Steve Brown and Ronnie Bryant at Don Lo’s, sat there with them until around 12:15 or 12:30, and then went driving around for one-half to an hour. Neither Wanda nor the two boys had anything to drink. It had been raining and Wanda waited for it to clear up until about 3:00 a.m., then drove home alone in her father’s Chevrolet. As she drove along she noticed another car with one person in it pull out behind her. She parked along the curb in front of where she lived, started to get out to run into the house when the person in the other car called to her to come there. She asked what he wanted and he asked if she lived there. She told him she did and that she was just going home, and declined his request to go riding with him.
Wanda was standing there in the rain, and when she refused to go riding with him he pointed a gun out of the rolled down window of his car and said, “[Wjell, if
Section 563.160, supra, is:
“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 by imprisonment in the penitentiary for a period not exceeding five years, or be punished by imprisonment in the county jail for a period not exceeding one year, or be fined in a sum not to exceed five hundred dollars or by both such fine and imprisonment.” (Emphasis added.)
Appellant argues that there was no evidence that any immoral, indecent, lewd or lascivious acts, habits or practices were performed against the minor. The evidence shows that appellant put his arm around Wanda, kissed her once, used foul language, told her to “do it” (meaning sexual intercourse as the jury could find) or he would shoot her, started to remove her dress, put his hand on her knee and leg, and on her breast. These acts clearly come within the above-italicized words of the statute which defines molestation of a minor, and occurred when Wanda was detained by appellant against her will, and show his intent to take indecent or improper liberties with her. The statute does not limit its application to any age group, but refers only to “any minor.” Under various statutes of this state a minor is defined as a person under twenty-one years of age, §§ 475.010 and 404.010, RSMo 1969, V.A.M.S., among some. See Audsley v. Hale, 303 Mo. 451, 261 S.W. 117; 43 C.J.S. Infants §§ 1, 2, p. 49; 27 Words and Phrases, p.
Appellant claims error in the giving of Instruction No. 1:
“The Court instructs the jury that if you find and believe from the evidence beyond a reasonable doubt, as that term is defined in other instructions, that on or about the 15th day of November, 1968, in the County of Greene and State of Missouri, the defendant Gary Francis Chappie did then and there wilfully, unlawfully and feloniously in the presence of a female minor, to wit: Wanda Irene Lathrop, of the age of eighteen (18) years, take improper liberties with such minor by kissing her and fondling her person, and by language refer to an immoral and indecent act, to wit: sexual intercourse, and detain said minor with intent to perpetrate the aforesaid acts of kissing, fondling and intercourse, and did thereby annoy and molest said minor, then your will find the defendant Gary Francis Chappie guilty of Molesting a Minor with Immoral Intent as charged in the information, and unless you find the facts so to be you will find the defendant, Gary Francis Chappie, not guilty.
“If you find the defendant Gary Francis Chappie guilty as charged in the information, you will assess his punishment at imprisonment in the penitentiary for a period not exceeding five years, or be punished by imprisonment in the county jail for a period not exceeding one year, or be fined in a sum not to exceed five hundred dollars or by both such fine and imprisonment.”
It is first said that the statute calls for “indecent or improper liberties” and the instruction directed a conviction if the jury found that appellant took only improper liberties. The words “indecent” and “improper” are in the disjunctive and therefore the state had the option of using either word or both as the evidence tended to support. The instruction did not assume that kissing and fondling were improper liberties. Kissing and fondling were merely additional adjectives defining the general term “improper liberties” which the jury was required to find. So also with the words “by language refer to an immoral and indecent act, to wit: sexual intercourse,” which under the evidence and common knowledge would not require a specific finding that such words referred to a lewd, lascivious act. The evidence was that appellant touched Wanda’s knee, her leg, her breast, and an attempt was made to unzip her dress. These acts would be within the meaning of fondling as that term is commonly known. State v. Jackson, Mo., 369 S.W.2d 199, 204, had a
The judgment is affirmed.
PER CURIAM:
The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.
All of the Judges concur.
Reference
- Full Case Name
- STATE of Missouri v. Gary Francis CHAPPLE
- Status
- Published