State v. Daugherty

744 S.W.2d 849, 1988 Mo. App. LEXIS 174, 1988 WL 5139
CourtMissouri Court of Appeals
DecidedJanuary 28, 1988
DocketNo. 15056
StatusPublished
Cited by6 cases

This text of 744 S.W.2d 849 (State v. Daugherty) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Daugherty, 744 S.W.2d 849, 1988 Mo. App. LEXIS 174, 1988 WL 5139 (Mo. Ct. App. 1988).

Opinions

MAUS, Judge.

An amended information charged the defendant committed the class C felony of trafficking in children, § 568.175, by offering $1,000 for the purchase of a child with the purpose of adopting the child. A separate information charged the defendant committed the class D felony of carrying a concealed weapon, § 571.030.1(1). The cases were consolidated for trial upon two counts. A jury found the defendant guilty of each charge and assessed his punishment on each charge at imprisonment for one year in the county jail and a fine of $500. The trial court ordered the sentences to run concurrently.

The defendant and one A.B. lived as neighbors in rural Howell County. A.B. from time to time worked as an “undercover agent” for the sheriff and highway patrol. This was apparently unknown to the defendant. On various occasions the defendant told A.B. he would like to buy a child. In December, 1985, the two were visiting while A.B. was cutting wood for the defendant. A.B. asked him how he lived without electricity. The defendant replied “the only thing in this world that really that he needed that he didn’t have was modern electricity and — and tender young pussy.” He added that he wanted to adopt a child, raise it as his own, and later on maybe marry her. Later in the month the defendant repeated to A.B. his desire to purchase a child.

A.B. realized the defendant was serious about buying a child. A.B. reported the [851]*851matter to the sheriff. Arrangements were made for A.B. to purport to be able to supply a child to the defendant. When the defendant again talked with A.B. about buying a child, A.B. told the defendant he knew a prostitute who was going to prison and would sell her child. The defendant said he “wanted a blonde-headed, blue-eyed baby girl roughly two years old, big enough to eat solid food, and that he wanted a birth certificate with her.” The defendant further said “he would pay one thousand dollars for the baby girl with the stipulation that he could examine her and that if she was a virgin intact, he would pay one thousand dollars, and, if not, his exact words was she would be damaged products, so he would only pay five hundred.”

An employee of the sheriff agreed to play the part of the prostitute. She met with the defendant at A.B.’s residence to verify to the defendant the deal was real. In talking to the employee, the defendant corroborated his desire. Arrangements were made to complete the purchase.

At about 6:00 p.m. that day A.B. and the pretended prostitute went to the defendant’s home and said they were ready to close the deal. They drove, with the defendant following in his van, to a remote site in the woods. The sheriff and another confederate with a baby were waiting. The pretended prostitute assigned a fictitious birth certificate. The confederate seated at a distance in an automobile held aloft a baby so the defendant could see the child. The defendant paid the pretended prostitute $500 and advanced toward the automobile to inspect the child. The sheriff stepped from behind a building and arrested the defendant. The defendant had under his coat a loaded .357 magnum revolver. He also had another $500 in twenty dollar bills.

The defendant testified. He said he was 68 years old and wanted to marry “the youngest girl possible” so when he died she would receive social security payments through him for a long time. This was to “get even” with the Social Security Administration because in 1963 he had become totally and permanently disabled due to a motorcycle wreck and he was denied social security benefits for disability. He has been receiving regular benefits since he was 65.

The defendant said he wanted to buy the child from the pretended prostitute, but “didn’t instigate the incident.” He admitted meeting with A.B. and the pretended prostitute intending to “pay money for the little child.” He denied that he intended to adopt her because “you can’t marry an adopted child.”

Three of the defendant’s five points are interrelated. His first point is that the information was insufficient in that it failed to allege the defendant offered money for the delivery of the child. His second point is that the evidence was insufficient because there was no evidence the defendant offered money for the delivery of the child to a person or entity other than the defendant. His third point is that the verdict directing instruction on Count I was erroneous because it failed to require a finding that the defendant offered money for the delivery of a child to another person or entity other than the defendant. Section 568.175.1 provides:

A person, partnership, corporation, agency, association, institution, society or other organization commits the crime of trafficking in children if he or it offers, gives, receives or solicits any money, consideration or other thing of value for the delivery or offer of delivery of a child to another person, partnership, corporation, agency, association, institution, society or other organization for purposes of adoption, or for the execution of a consent to adopt or waiver of consent to future adoption or a consent to termination of parental rights, (emphasis added).

The question common to the three points is whether the emphasized words are to be construed to proscribe delivery of a child to any person or only to a person other than [852]*852the one who offers money. To establish the latter, the defendant argues that this criminal statute must be construed liberally in favor of the defendant and strictly against the state. He cites State v. Treadway, 558 S.W.2d 646 (Mo. banc 1977), cert. denied, 439 U.S. 838, 99 S.Ct. 124, 58 L.Ed. 2d 135 (1978), overruled on other grounds. He also relies upon the maxim expressed in the following:

Statutes defining crime must be construed liberally in favor of the defendant and strictly against the State. They will not be interpolated as embracing any but those acts or omissions clearly described in the statute both within the letter and spirit of the law.... No person can be made subject to a criminal statute by guesswork or mere implication and a criminal statute is not to be held to include offenses or persons other than those which are clearly described and provided for both within the spirit and letter of the statute. If there is fair doubt as to whether the act charged and proved is embraced within the prohibition, that doubt will be resolved in favor of the accused.

State v. Kayser, 552 S.W.2d 27, 29-30 (Mo.App.1977) (citations omitted).

The canon of strict construction of criminal statutes is well recognized. However, that canon is not to be applied inflexibly, to override all other considerations. A limitation upon its application has been authoritatively expressed by the Supreme Court of the United States.

We are mindful of the maxim that penal statutes are to be strictly construed. And we would not hesitate, present any compelling reason, to apply it and accept the restricted interpretation. But no such reason is to be found here. The canon in favor of strict construction is not an inexorable command to override common sense and evident statutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language. As was said in United States v. Gaskin,

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Related

Johnson v. State
854 S.W.2d 539 (Missouri Court of Appeals, 1993)
State v. Hampton
817 S.W.2d 470 (Missouri Court of Appeals, 1991)
State v. Gilmore
797 S.W.2d 802 (Missouri Court of Appeals, 1990)
State v. Dowdy
774 S.W.2d 504 (Missouri Court of Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
744 S.W.2d 849, 1988 Mo. App. LEXIS 174, 1988 WL 5139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-daugherty-moctapp-1988.