State v. Wickizer

The 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 Mitchell we 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…