Davison v. State , 1955 Okla. Crim. App. LEXIS 184 ( 1955 )

BRETT, Judge.

Plaintiff in Error, Carl Richard Davison, Defendant below, was charged in the District Court of Tulsa County, Oklahoma, by information, with the commission of the offense of indecent exposure, T. 21, § 1021, O.S.1051, in the City of Tulsa, Oklahoma, on August 25, 1953. The defendant waived a jury and the case was tried to the court who found the defendant guilty and fixed his punishment at 18 months in the Penitentiary; suspended under the provisions of T. 22, § 991, O.S.1951; the defendant having borne a good reputation, and being without prior conviction. From this conviction, judgment and sentence, this appeal has been perfected.

It is sufficient to say that the evidence was conflicting; the state offered proof which, if believed, adequately supports the charge, and the defendant’s evidence was sufficient, if believed, to have acquitted him. Under these conditions the matter was one for the determination of the trial court. It has been repeatedly held, “ ‘where a jury is waived and a case tried to the court, his findings as to the guilt of the defendant will not be reversed where there is any compe-ten¿ evidence in the record, .together with the reasonable inferences and deductions to be drawn therefrom, supporting the court’s finding’ ”, McCarthy v. State, 91 Okl.Cr. 294, 218 P.2d 397, 402; Crim v. State, 68 Okl.Cr. 390, 99 P.2d 185, and other cases to the same effect. The record evidence ife sufficient to support the judgment and sentence.

This prosecution was brought under the provisions of T. 21, § 1021, O.S.1951, the pertinent part of which reads as follows:

“Every person who wilfully and lewdly either: First: Exposes his person, or private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; * *

The defendant relies on the proposition that the foregoing provision of the statute prohibits “exposure of one’s private parts”, “in any public place, or in any place where there are present other persons * * It'is apparent the foregoing provisions of the statutes define two - situations in which indecent exposure may constitute a violation of law.

The evidence of the state discloses the defendant in an entirely nude condition displayed himself from his garage, through an ordinary open back door, in the late afternoon of a bright sunny day, to Mrs. M. C. Norris. The first time Mrs. Norris observed the defendant’s exhibition of himself was when she came out to her clothes line, situated in her back yard, across from their back property lines. She testified he was making motions to her, and masturbating. It has been held that the offense does not depend upon the number of people present and, that an intentional act of lewd and indecent exposure to one or more persons is sufficient to make out a case under the law; Massachusetts Commonwealth v. Broadland, 315 Mass. 20, 51 N.E.2d 961; 67 C.J.S., Obscenity, § 5, Note 56, p. 26; Commonwealth v. Bishop, 296 Mass. 459, 6 N.E.2d 369.

The defendant continued the exposure of his person to Mrs. Norris when she went into her house, as well as to three of her neighbors whom she called to her kitchen window to observe the defendant’s exhibition. In this exhibition, the defendant was lying prone on the floor in front of the open, sunlit back door to the garage. Two of these observers, Mr. Westling, and Mr. Johnson, said they could see his private parts. The record discloses this was not the first time such conduct on the defendant’s part had been so observed.

On 'that statement of the record, the defendant urges that taking the evidence of the state as true, his exposure took place within four walls of his garage and that the evidence fails 'to establish that there was present in that place (the garage), any other person. The defendant places the emphasis upon the words “or in any place where there ■ are present other persons * * * ”, in fact in substance he contends the last quoted language means other persons must be present in the place (the garage) with a person who is exposing hims,elf. This is a case of first impression wh.ere such contention has been raised in Oklahoma.

Apparently the defendant believes the statute should be limited to a place such as the garage in the case at bar, -and that persons must have been in the garage with him at the time of the exposure. We do not believe it was the inten-ción. of the legislature to so restrict the meaning of the statute to a garage, or a room where other persons were present. This theory of the defendant, if followed to its logical conclusion, would make it impossible. to convict one who wilfully and lewedly exposed himself from a closet within his house, to guests in his living room in a manner comparable to the exhibition of this defendant from his garage. We do not believe the statute should he so restricted, neither do we believe that it was the intention of the legislature, or that it is within the power of this court, to extend, or enlarge by implication, or inference, the foregoing statute. Little v. State, 55 Okl.Cr. 420, 32 P.2d 94; McDonald v. State, 54 Okl.Cr. 122, 15 P.2d 149; Ex parte Barnett, Okl.Cr., 252 P.2d 496; Ex parte Overturff, Okl.Cr., 252 P.2d 505-508. We are of this opinion however, that the legislative intent should he sought in the ordinary meaning of the words of the statute, construed in view of the connection in which they are used and of the evil to be remedied. Couch v. State, 71 Okl.Cr. 223, 110 P.2d 613. Our inquiry then is what did the legislature mean by the terms “place”, and “present”? Webster’s New International Dictionary defines a place as an open space, or square, in a city or town; a street, an area, a court, a private residence, a terrace, etc. Webster’s New International Dictionary also defines the term “presence”, or “present” to mean as being before, in view, or at hand; being within reach, sight, or call, etc. Applying the foregoing definitions of place and present to the statute herein, it is apparent therefore that anyone who wilfully and lewdly exposes himself in a public place, an open space, area, square, street, private residence, or ip any place where others are present, in view of, being before him, or in sight of him, and to be annoyed thereby, such exhibitionist has violated the provision of T. 21, § 1021, O.S.1951.

We do not believe that the foregoing interpretation of the statute is an unreasonable one. It was said in Spelling v. State, 55 Okl.Cr. 195, 28 P.2d 584: “If he commits it’in any place where there are other persons to be annoyed thereby, he is guilty.” The learned author of that opinion might have said, if (an accused wilfully) committed the indecent exposure in any place where others were present before him, or in view of him, or within sight of him, which person may be annoyed thereby, he is guilty. In Moffitt v. State, 43 Tex. 346, the Texas Court of Criminal Appeals said:

“The publicity contemplated in the code has reference to persons who do or can see it rather than to the place. * * * On the other hand, the place may itself be private, and yet the person be so exhibited to public view as to be an exhibition of the person ‘in public’ in the meaning of the law.”

With such holding, we are in accord. We are of the further opinion that there is little distinction as to matter of the place from which the exposure is consummated, for even a semi-private place such as the garage herein involved, could become in the eyes of the law, a place of public exposure, if there are persons in view, or sight to see it, and who are annoyed thereby. In Regina v. George Thallman, LE. & CA. 327, 169 Eng.Rep. 1416, Crown Cases Book 2, it was said:

“ * * *, the place and the exposure were sufficiently public to bring the acts of the prisoner within the law, if they should be of opinion that he exposed himself, in fact, indecently, wilfully, and intentionally.”

We are therefore of the opinion that the gist of the offense is a wilful, intentional, lewd exposure of one’s private parts in any place, whether public or private, where a person, or persons to be annoyed thereby, are present, or in sight of said exhibition, and where such exhibition is made with such knowledge. Clearly this defendant falls within both the letter and spirit of T. 21, § 1021 O.S.1951. The judgment and sentence herein imposed are accordingly affirmed.

JONES, P. J., and POWELL, J., concur.