Opinion
No. 42015.
October 9, 1950.
APPEAL FROM THE CIRCUIT COURT, SHELBY COUNTY, WALTER HIGBEE, J.
B. R. Williams, Macon, William M. Stringer, Moberly, for appellant.
J. E. Taylor, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.
A jury has found the appellant guilty of a sodomitical offense and fixed his punishment at two years' imprisonment. Mo. R.S.A. § 4650. In his brief and argument the appellant does not challenge the sufficiency of the evidence to sustain the conviction, there is no error upon the record proper, and the only question is whether the trial court erroneously and prejudicially instructed the jury.
The state's principal instruction conventionally hypothesized all the facts requisite to a finding of the appellant's guilt and concluded with this paragraph: "You are further instructed that it is immaterial whether the person so used or abused, if any, * * * consented thereto or not, and that consent of the person so used or abused, if any, is not a defense to the crime charged." A separate instruction, in effect, informed the jury that it was no defense to the charge that a police officer paid the pathic the sum of five dollars for subjecting himself to the sodomitical act. A third instruction concerned the testimony of an accomplice, its admissibility and the caution with which it should be received when not corroborated by other witnesses. It is insisted by the appellant that these instructions single out certain witnesses and thereby give undue prominence to their testimony, that they single out portions of the evidence and comment upon it by telling the jury that such facts are immaterial and constitute no defense to the crime charged. It is said that these instructions withdraw evidence from the jury's consideration and deprive the appellant of the benefit of it and in so doing invade the province of the jury by instructing upon the weight of the evidence. It is also objected that these instructions conflict with the instructions on the credibility of the witnesses and on reasonable doubt.
But, after the jury has been fully instructed as to the ingredients of the offense, as well as upon the subjects of reasonable doubt and the credibility of the witnesses, it is not improper for the court to inform the jury that certain matters do not constitute a defense, especially when such is the case and so long as the court does not cast discredit or suspicion upon any legitimate defense. 23 C.J.S., Criminal Law, § 1199, p. 750. In this case the appellant did not make the defense of entrapment, 22 C.J.S., Criminal Law, § 45, p. 99, his defense was that he did not commit the act charged. Furthermore, there is a vast difference between inducing one to perform an unlawful act and setting a trap to catch him in his unlawful design. 15 Am.Jur., Sec. 335, p. 24; annotations 86 A.L.R. 263; 18 A.L.R. 146. Distasteful as it may be, it is not a defense to a criminal charge or unlawful to employ decoys. State v. Hoyt, 324 Mo. 837, 24 S.W.2d 981; State v. Murphy, 320 Mo. 219, 6 S.W.2d 877; State v. Decker, 321 Mo. 1163, 14 S.W.2d 617. In this case, in addition to the testimony of the hired pathic, the two policemen who peeked over the transom testified to a fully completed offense on the part of the appellant, and the policemen, even though they were instrumental in procuring the specific violation, were not the appellant's accomplices. 22 C.J.S., Criminal Law, § 788, p. 1340. The appellant's basic argument overlooks the fact that it was the pathic and not the appellant who was employed — that it is the appellant and not the pathic who is charged with the offense. The last paragraph of the first instruction was copied from State v. Katz, 266 Mo. 493, 181 S.W. 425, a sodomy case.
The instruction on accomplice was taken from State v. Pope, 338 Mo. 919, 92 S.W.2d 904, a robbery case. It has been given in other cases, State v. West, Mo. Sup., 246 S.W. 541; State v. Yates, Mo. Sup., 252 S.W. 641, but the appellant insists that these cases should be re-examined and that the giving of the instruction should be held erroneous. But this instruction is not comparable in its effect to the instructions concerning the interest of the defendant or of his wife. State v. Finkelstein, 269 Mo. 612, 191 S.W. 1002; State v. Stallings, 334 Mo. 1, 64 S.W.2d 643. Those instructions single out the defendant or a witness and in effect unfavorably comment on the weight of their evidence, they invade the right and duty of the jury's passing upon the credibility of the witnesses and conflict with the usual instruction on the subject of the credibility of the witnesses, as this one does not. State v. Miller, Mo.Sup., 208 S.W.2d 194, 202. Heretofore this instruction has been given on behalf of defendants and the complaint has usually been of its refusal. State v. Rizor, 351 Mo. 137, 171 S.W.2d 710; State v. Wilkens, 221 Mo. 444, 120 S.W. 22, a sodomy case. The pathic was an accomplice, State v. Gurnee, 309 Mo. 6, 274 S.W. 58, but, as we have indicated, he was corroborated by the two policemen, it is a cautionary instruction and it is intended for a defendant's benefit. State v. Pope, supra. An instruction on the weight of corroborative evidence is an invasion of the jury's province, nevertheless so long as the instruction does not charge whether a particular witness is an accomplice or that the testimony of a witness is corroborated when these are questions for the jury, the court may instruct upon the subject of accomplice and the need of corroboration. 23 C.J.S., Criminal Law, § 1162, p. 698. The instruction here does not contain these defects and the comment inherent in the cautionary charge was not prejudicial to the appellant. State v. Pope, supra; State v. Crab, 121 Mo. 554, 565, 26 S.W. 548 and State v. Pfeiffer, 277 Mo. 202, 209 S.W. 925, a sodomy case. In the respects complained of the instructions were not prejudicially erroneous and the judgment is affirmed.
WESTHUES, and BOHLING, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.
All concur.