State v. Waymire , 52 Or. 281 ( 1908 )

Opinion by

Mr. Chief Justice Bean.

1. It is contended that the acts charged in the indictment do not constitute a crime within the meaning of the statute under which the information was filed, and which provides “that if any person shall willfully and wrongfully commit any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages the public decency and is injurious to public morals, such person, if no punishment is expressly prescribed therefor by this Code, upon conviction thereof, shall be punished by imprisonment in the county jail not less than one month nor more than six months, or by fine not less than fifty nor more than two hundred dollars.” This statute was intended by its language to cover offenses against the public peace, the public health, and the public morals, not elsewhere made punishable by the Code, and which were known at common law as “indictable nuisances.” State v. Bergman, 6 Or. 341; State v. Nease, 46 Or. 433 (80 Pac. 897); State v. Ayres, 49 Or. 61 (88 Pac. 653). It is true that the word “nuisance” does not appear in the statute; but, as said in State v. Nease, supra, “the language used is essentially descriptive of the general character of such offenses, and quite equivalent thereto.” We are, therefore, required to resort to ■ the common law to ascertain what act “grossly outrages public decency and is contrary to good morals,” as applied to criminal prosecutions.

2. There was a time when it was thought that the subject of morals, public and private, belonged exclusively to the ecclesiastical courts, and therefore but little mention is made in the common-law reports of punishments for offenses contra bonos mores until the reign of Charles II, when Sir Charles Sedley was indicted and severely punished for standing naked on a public balcony in the city of London. 1 Keble, 620, 17 Howell’s St. Tr. 154. This case was subsequently frequently cited, often doubted, and sometimes followed, until Rex v. Delaval, 3 Burr. 1438, which was a prosecution for conspiracy to place a young women in the possession of a man for prostitution, and publicly to exhibit her as a kept mistress, when Lord Mansfield put the question at rest by holding that the common-law courts, being cusios morum of the people, had jurisdiction of all offenses contrary to good morals and public decency, citing in support of his conclusion the opinion of Lord Hardwicke, who ordered the prosecution of a man for formerly assigning his wife to another as “being grossly against public decency and public morals.” It is, therefore, now settled that acts of public indecency, such as lewdness (Wharton, Criminal Law, 1432), exhibiting obscene pictures (Commonwealth v. Sharpless, 2 Serg. & R. [Pa.] 91: 7 Am. Dec. 632), standing naked on a balcony in a public place (1 Keble, 620), conspiring to place a young woman in possession of another for purposes of prostitution (Rex v. Delaval, supra), casting a dead body into a river (Kanavan’s Case, 1 Greenl. [Me.] 226), the publication of an indecent book (2 Strange, 789), and the like, are indictable and punishable at common law because they outrage public decency and are injurious to good morals. Mr. Chief Justice Tilghman says, in Commonwealth v. Sharpless, supra, that the true principle upon which this doctrine rests is that whatever tends to corrupt society is a breach of the peace and an offense against good morals, and the courts, being guardians of the public morals, have jurisdiction thereof.

3. The authorities cited show that the crime need not be a continuous one, but may consist of a single act, and that it need not affect the public at large, but only such as come in' contact with it. Now, applying these principles to the present case: The defendants are charged by the information of having, in pursuance of a conspiracy for that purpose, laid a plot or plan to get the prosecuting witness in an indecent and compromising situation with one of the defendants in a public place, and, while in such position, to direct the attention .of a large concourse of citizens to them, thereby making a public exposition of their indecent and compromising attitude. This, we think,' if true, was an act which openly outraged public. decency, was injurious to good morals^ and is within the statute.

It is claimed that the indictment charges more than one crime, because it alleges that the defendant Radding broke and shattered a door of the prosecuting witness’ office; but this was merely an act committed in pursuance to the general purpose of the conspiracy and in furtherance thereof, constituting a part of the crime charged, and not an independent one.

4. Error is also assigned based on the action of the court in receiving the verdict in the absence of the defendants and their counsel. The statute (Section 1378, B. & C. Comp.) provides that, if the indictment be for a misdemeanor, the trial may be had in the absence of the defendant, if he appear by counsel, and (Section 150) that after the verdict is given and before it is filed the jury may be polled on the request of either party. It is settled that a trial is not concluded until the verdict is received and recorded.

5. And therefore, under the statute, a defendant charged with a misdemeanor, has the right to be present at the rendition of the verdict, either in person or by his counsel, for the purpose of polling the jury, if he so desire, and if he is in custody, or otherwise deprived of this right without his fault, the verdict cannot properly be taken in the absence of himself or counsel.

6. The right, however, is conferred upon him for his own protection and benefit, and, like many other rights accorded him by law, may be waived, either expressly or impliedly; and by the weight of authority, when a defendant charged with a misdemeanor is on bail, and is present either in person or by his counsel at the commencement of and during the trial, until the cause is submitted to the jury, and afterwards voluntarily departs from the court before its adjournment and without leave, he will be deemed to have waived the right to be present on the rendition of the verdict, and it may be legally received in his absence. 12 Cyc. 528; 22 Enc. PL & Pr. 929. Indeed, many of the courts hold that this rule will apply in a trial for a felony. Frey v. Calhoun Circuit Judge, 107 Mich. 130 (64 N. W. 1047) ; Commonwealth v. McCarthy, 163 Mass. 458 (40 N. E. 766) ; Sahlinger v. People, 102 Ill. 241; State v. Way, 76 Kan. 928 (93 Pac. 159). The theory is that it is the duty of the defendant to be present until the close of the trial, and if he voluntarily absents himself the court is not obliged to await his pleasure, but may proceed without him.

7. Now, in this case it appears that the defendants and their counsel, without leave, voluntarily retired from the court after the case had been submitted to the jury and before the court had adjourned; and under the authorities this operated as a waiver of their right to be present at the rendition of the verdict, and authorized the court to receive it in their absence. The failure of the deputy sheriff to telephone defendants’ counsel when the jury were ready to report, in accordance with his promise, cannot affect the question, or make the absence of counsel without the consent of the court any the less voluntary.

Judgment affirmed. Affirmed.