United States v. Manos , 8 USCMA 734 ( 1958 )

Opinion of the Court

ROBERT E. Quinn, Chief Judge:

Among other offenses, the accused was charged with “wilfully and wrongfully” exposing his naked body to public view. The charge arose put of the following circumstances: An Air Policeman observed the accused in the upstairs rear bedroom of his home. The window of the room was open and the blind was up. The accused came out of the bathroom, entered the bedroom, and dried himself with a towel “in front of the window.” In returning findings of guilty, the court-martial excepted the word “wilfully” and substituted the word “negligently.” We granted review to consider whether negligent indecent exposure is an offense in military law.

Several boards of review have held, at least by implication, that negligent exposure under circumstances in-which the exposure can be observed by others is misconduct in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. United States v Grady, 21 CMR 686; United States v Anderson, 8 CMR 212; United States v Clark, 9 BR—JC119. However, in many civilian jurisdictions in which indecent exposure is an offense, the law requires intentional or willful conduct. Van Houten v State, 46 NJL 16 (1883) : Miller v The People, 5 Barb 203 (NY) (1849); Truett v State, 3 Ala App 114, 57 So 512; see also United States v Schumacher, 2 USCMA 134, 7 CMR 10. The same requirement is found in the model form of specification set out in the Manual for Courts-Martial, United States, 1951, Appendix 6c, specification 147.

In a number of cases this Court has held that an act resulting from simple negligence does not give rise to criminal liability in the absence of a statute or “ancient usage.” United States v Greenwood, 6 USCMA 209, 19 CMR 335; United States v Downard, 6 USCMA 538, 20 CMR 254. In other words, penal liability generally requires “something in the nature of mens rea.” United States v Downard, supra, page. 545. Although not conclusive of the issue (see United States v. Malone, 4 ÚSCMA 471, 16 CMR 45), it is worth noting that negligent exposure is not listed as a lesser included offense to willful exposure, and there is only one type of indecent exposure provided for in the Table of Maximum Punishments. United States v Norris, 2 USCMA 236, 8 CMR 36. In the Norris case, supra, page 239, we held that we would not permit the services to eliminate indiscriminately vital elements of reeog-ized offenses and “permit the remaining elements to be punished as an offense under Article 134.” That statement is applicable here. In our opinion, negligent exposure is not punishable as a violation of the Uniform Code.

The findings of guilty of specification 1 are set aside and the charge is ordered dismissed. The record of trial is returned to The Judge Advocate General of the Air Force for submission to the board of review for reassessment of the sentence on the basis of the remaining findings of guilty.

Judge FERGUSON concurs.