7/22/2021 Guarro v. United States, 237 F.

2d 578 (1956) | Caselaw Access Project

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Guarro v. United States, 237 F.2d 578 (1956)

Sept. 27, 1956 · United States Court of Appeals for the District of Columbia Circuit · No.
12844
237 F.2d 578

Case outline: Majority — Washington, Circuit Judge.

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Citing cases: 54 cases cite to this case

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COURTLISTENER

Ernesto GUARRO, Appellant,

v.
UNITED STATES of America, Appellee

United States Court of Appeals District of Columbia Circuit.

' Argued Feb. 24’ 1956.

ATTORNEYS

Mr. Claire 0. Ducker, Sr., Washington, D. C., for

*579
appellant.

Mr. Fred L. McIntyre, Asst. U. S. Atty., with whom

Messrs. Leo A. Rover, U. S. Atty., at the time brief was
filed, Lewis Carroll and Alfred Burka, Asst. U. S. Attys.,
were on the brief, for appellee.

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Mr. Herbert D. Horowitz, Washington, D. C. (appointed

by this Court), filed a brief as amicus curiae, urging
reversal.

Before WILBUR K. MILLER, BAZELON and WASHINGTON,

Circuit Judges.

Opinion
Author: WASHINGTON, Circuit Judge.
Appellant was convicted in the Municipal Court of assault, under D.C.Code
1951, § 22-504.1 The Municipal Court of Appeals affirmed. 1955, 116 A.2d 408,
409. We later allowed this appeal.

The assault alleged was a deliberate touching of the private parts of a police
officer, not in uniform, who is a member of the morals division. He was on
duty in a motion picture theatre. The episode is thus summarized by the Mu‐
nicipal Court of Appeals:

“The complaining witness testified that he first observed the defendant in the
men’s room of the theater, saw him leave, and a few minutes later noticed him
standing in the mezzanine balcony. Complainant then proceeded to return from
the balcony to the orchestra floor by way of a rear stairway and, in doing so,
paused for a few minutes to lean against the wall. He was approached by defend‐
ant and was asked why he was not looking at the picture. The officer replied that it
was too noisy, whereupon defendant * * reached his hand over and placed it on
my privates.’ The officer asked the defendant if he wanted to engage in an act of
perversion, and upon receiving an answer in the affirmative, identified himself
and placed him under arrest.”

The situation thus involves some of the elements that were present in Kelly v.
United States, 1952, 90 U.S.App.D.C. 125, 194 F.2d 150.

Appellant’s chief contentions are that the general assault statute has no ap‐
plication to a non-violent sexual touching of the present sort, and that the use
of that statute would permit flagrant violation of the rule of the Kelly case,
where we required high standards of proof in cases charging invitation to
sodomy.

As to the first contention, our views will shortly be stated: it is enough at this
point to say that we find no essential infirmity in the application of the as‐
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sault statute to incidents of this general sort. As to the second contention this
much is clear: whether (as here) the information is brought under the general
assault statute, D.C.Code, 1951, § 22-504, or under the statutes dealing spe‐
cifically with sexual crimes, D.C.Code, §§ 22-1112, 22-2701, Supp. IV, 1955, we
think the standards set forth in the Kelly case should be applied to cases of
the present sort. Our decision in Kelly did not purport to be based on any ex‐
press or implied requirements of Section 22-2701, and indeed did not deal
with all the crimes comprehended within that section. It was based rather on
the peculiar nature of a charge involving homosexual conduct, and the diffi‐
culties that face a person accused of such conduct. 90 U.S.App.D.C. at pages
580 128-129, 194 F.2d at pages 153-154. In Kelly the *580 crime alleged was an in‐
vitation to sodomy, and we said:

“In the first place, the testimony, of a single witness to a verbal invitation to sod‐
omy should be received and considered with great caution. The great public in‐
terest that charges of this offense be not preferred without sound foundation re‐
quires that there be a known strictness on the part of the courts which will serve
to deter prosecutors in dubious cases.”

The same caution should be applied in considering the testimony of the ar‐
resting police officer in cases like the present, relative to an act which by its
nature left no traces and to which there were no other witnesses.

We turn to the question whether the evidence in this case, when tested by the
rules laid down in Kelly, is sufficient to support a conviction obtained under
the general assault statute. At the outset it should be noted that the informa‐
tion is not brought under one of the misdemeanor statutes — carrying much
lighter maximum penalties — dealing specifically with sexual offenses of the
general sort here alleged.2 It is of course true that a single act may violate
more than one criminal statute “At least where different proof is required for
each offense”. United States v. Beacon Brass Co., 1952, 344 U.S. 43, 45, 73 S.Ct.
77, 79, 97 L.Ed. 61. But before we can countenance the use of an assault stat‐
ute to cover conduct that appears to fall within the bounds of misdemeanor
statutes, some designed, it would seem, specifically to deal with facts of the
sort alleged here, we must be certain that the elements of an assault have
been established.

The assault contemplated by Section 22-504 is a common law assault. Beau‐

soliel v. United States, 1939, 71 App.D.C. 111, 114, 107 F.2d 292, 295. Assault at
common law is “an attempt with force or violence to do a corporal injury to
another; and may consist of any act tending to such corporal injury, accom‐
panied with such circumstances as denote at the time an intention, coupled
with the present ability, of using actual violence against the person.” Patter‐
son v. Pillans, 1915, 43 App.D.C. 505, 506-507. 3 What we are dealing with here
is not an assault in the accepted meaning of the term. The defendant is not
alleged to have physically injured the policeman, nor even to have thought of
doing so. Nevertheless we recognized in Beausoliel that non-violent actions
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involving sexual misconduct may constitute assaults. In such a case, “threat

or danger of physical suffering or injury in the ordinary sense is not neces‐
sary. The injury suffered by the innocent victim may be the fear, shame, hu‐
miliation, and mental anguish caused by the assault.” Beausoliel v. United
States, supra, 71 App.D.C. at pages 115-116, 107 F.2d at pages 296-297.

In the instant case appellant seeks to negative the assault by pointing out that
the policeman specifically denied being “hurt,” “embarrassed,” or “humili‐
ated.” But we do not understand Beausoliel to require specific proof of emo‐
tional injury, whether the victim be a child or an adult. Unless there is con‐
sent, it would seem that a sexual touching is a sufficiently offensive act to
581 constitute an *581 assault. Nor should the fact that an experienced policeman
denies emotional injury alter the situation. The reluctance of these officers to
admit embarrassment when, in the line of duty, they are involved in an incid‐
ent like the one alleged here should not make them a special class whom per‐
verts may assault with impunity.

Nevertheless the evidence in the instant case cannot support a conviction for
assault unless it appears that there was no actual or apparent consent. Gener‐
ally where there is consent, there is no assault. 1 Wharton, Criminal Law §§
180, 751 (12th ed. 1932) 4If the defendant in an assault prosecution “believes
on grounds regarded as adequate that he is dealing with a consenting person,
he will be treated as if this were so by the operation of a rule in no way spe‐
cially devised for this situation, but extending all through the field of crim‐
inal law and applicable generally in case of mistake of fact.” Putkammer, Con‐
sent in Criminal Assault, 19 Ill.L.Rev. 617, 628, n. 40 (1925).

In some situations consent is irrelevant. Thus when sexual assaults are com‐
mitted upon children or idiots or patients of a fraudulent doctor, consent is
not a defense.5 The reason is that the victims in these cases, because of ignor‐
ance or deceit, do not understand what is happening to them. Therefore their
“consent” is of no significance. But such is not the case here. The “victim” in
this case is a police officer charged with the duty of arresting, among others,
persons committing crimes involving sexual deviation. Therefore, while con‐
duct of children and idiots just prior to an assault has no bearing on the crim‐
inal responsibility of the assailant, the conduct of this policeman is of crucial
significance, for he not only is aware of what is happening, but, furthermore,
he may think that it is part of his job to see to it that such things as are alleged
here do happen to him.6 The Municipal Court of Appeals in McDermett v.
United States, D.C.Mun.App.1953, 98 A.2d 287, 290, discussed the problem of
homosexual assaults on police officers in these terms:

“Courts are not so uninformed as not to be aware that there are such things as flir‐
tations between man and man. And when flirtation is encouraged and mutual,
and leads to a not unexpected intimacy or an intimacy not discouraged or re‐
pelled, such cannot be classified as an assault. Even more strongly should the rule
apply when the complaining witness is a policeman. An officer of the law, as we

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have said, has the duty of preventing, not encouraging crime. As appellant’s coun‐
sel says in his brief, an officer should not be permitted to ‘torment and tease weak
men beyond their power to resist’ and then attempt to make out a case of assault.”

The policeman’s conduct in the instant case is for the most part not disputed.
From the testimony of the policeman and the accused it appears that the, two
men first noticed each other in the men’s room of a local theatre. The defend‐
ant then walked to, the mezzanine balcony, and shortly thereafter the police‐
man appeared near him.7 When asked “You had your eye on him?” the police‐
man replied, “When I saw him standing up in the back there, I noticed him,
582 yes.” Then the policeman left the balcony, *582 walked down a back stairway,
stopped on the stairs and waited for “three or four minutes.” As the defendant
■ descended the stairs,8 the policeman was standing on the stairs, leaning
against the wall, apparently with his coat unbuttoned.9 Immediately after the
alleged touching, according to the officer’s own testimony, he asked the de‐
fendant “if he wanted to take it.”

' “To sustain '■ [this conviction] we should- have to find, at least, that the evid‐
ence is more consistent with guilt than with innocence.” Williams v. United
States, 1944, 78 U.S.App.D.C. 322, 323, 140 F.2d 351, 352. If the-policeman did
no more than permit the alleged touching, there would be no real or apparent
consent. But more happened here than that. Considering the totality of the
policeman’s conduct, including his inviting inquiry to the defendant, we can‐
not say that the evidence is more consistent with an assault than with an,act
induced in part by apparent consent. In a case like the present, to let the sus‐
pect think there is consent in order to encourage an act which furnishes an
excuse for an arrest will- defeat a prosecution for assault.

There are many situations wherein use of, police decoys is permissible, and
perhaps a practical necessity. Drug peddlers are hard to catch if the under‐
cover, policeman, may not make a purchase. And, of course, he may make a
purchase, and it may lead to a conviction. The difference, however, between
that case and this-is that selling drugs is a crime against society no matter
how willing the customer may be to purchase, whereas a homosexual touch‐
ing of an apparently willing and competent person is not an. “assault,”
whatever else it may be in the catalogue of criminal offenses.10

Reversed.

1 . That section provides:

“Whoever unlawfully assaults, or threatens another in a menacing manner,
shall be fined not more than five hundred dollars or be imprisoned not more
than twelve months, or both.”

2 . D.C.Code, § 22-1112, Supp. IV, 1955 provides a fine of up to $300 and impris‐
onment of up to 90 days or both, for persons who “make any lewd, obscene, or

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indecent sexual proposal, or * * * commit any other lewd, obscene, or inde‐

cent act in the District of Columbia”. Prior to the 1953 amendments to the
Code, 67 Stat. 92 (1953), Section 22-1112 encompassed only obscene or inde‐
cent exposure. Section 22-2701 provides a fine of up to $250 and imprisonment
of up to 90 days or both for inviting or persuading a person over sixteen “for
the purpose of prostitution, or any other immoral or lewd purpose”. In addi‐
tion, the 1953 amendments added a disorderly conduct statute, D.C.Code, Sec‐
tion 22-1121, Supp. IV, 1955, carrying the same penalties as Section 22-2701.

3 . See also 1 Wharton, Criminal Daw § 799 (12th ed. 1932).

4 . “ * * * in criminal law, an act does not constitute an assault, or an assault and

battery, if the person on or against whom it is committed freely consents to
the act, provided he or she is capable of consenting, and the act is one to
which consent may be given, and the consent is not obtained by fraud.” Clark
& Marshall, Crimes, § 212 (5th ed. 1952).

5 . See 1 Wharton, Criminal Law § 751 (12th ed. 1932), and eases there cited.

6 . See Henderson v. United States, D.C. Mun.App.1955, 117 A.2d 456; McDetmett
v. United States, D.C.Mun.App. 1953, 98 A.2d 287; Dyson v. United States,
D.C.Mun.App.1953, 97 A.2d 135,

7 . The defendant testified that he thought the policeman had followed him.

8 . When asked whether he had any idea that the defendant would follow him
down the stairs, the policeman replied, “Well, I did not know whether he
would or not.”

9 . The officer- first testified that his- coat may have been open, but he was not
sure-; then said it must have been open; and,finally, that it was open. i-

10 . See note 2, supra.

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