583 SW2D 519 - State v. Wickizer

How this case has been cited

Cited by 41 later decisions — most recently November 2016 · most notably State v. Blair (1982), Benson v. State (1980)

2 federal appellate · 39 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

BARDGETT, Judge,

¶1concurring.

¶2The principal opinion asserts that appellant’s attack upon the facial constitutionality of sec. 563.230, RSMo 1969, the sodomy statute, cannot be entertained because it was not preserved for appeal in the trial court. A similar contention was made by the state in State v. Mitchell, 563 S.W.2d 18 (Mo.banc 1978). In Mitchellwe quoted with approval from Kansas City v. Hammer, 347 S.W.2d 865 (Mo.1961), as follows:

“This state is thoroughly committed to the proposition that the unconstitutionality of an ordinance or statute on which a prosecution is based cannot be waived. The invalidity of such an act on constitutional grounds goes to the subject matter of the prosecution and may be raised at any stage of the proceedings, even by a collateral attack after conviction. Ex parte Lerner, 281 Mo. 18, 218 S.W. 331; Ex parte Taft, 284 Mo. 531, 225 S.W. 457; Ex parte Smith, 135 Mo. 223, 229, 36 S.W. 628, 33 L.R.A. 606; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; and State v. Finley, 187 Mo.App. 72, 172 S.W. 1162.” 563 S.W.2d 22-23.

¶3The point should be entertained and decided. Upon entertaining this point I would hold that the statute is not facially unconstitutional as an illegal invasion of appellant’s privacy.

¶4I therefore concur in affirming the judgment.