296 Mass. 459 | Mass. | 1937
This was a complaint that the defendant on the sixteenth day of July, 1936, “in a public place . . . wherein were great numbers of people, indecently did expose to the view of the said people his body and person naked and uncovered.” Following a conviction and sentence in the District Court, on appeal the case was tried in the Superior Court, without a jury.
The defendant lived on Concord Avenue, Somerville, near its intersection with Beacon Street. A witness for the Commonwealth lived on Beacon Street near said intersection. The rear of the defendant’s house was about one hundred fifty feet distant from the rear of the house occupied by the witness for the Commonwealth. From a room on the rear of the house it was possible to see into the second floor rear room of the defendant’s house.
There was evidence that on the day in question the attention of the witness was attracted by a ray of light on her kitchen wall; that she went into her bedroom, and, looking out of the window, across the rear yards behind her house and the house occupied by the defendant, she saw the defendant standing in the middle of the rear room on the second floor of his house; that he was naked from his waist down and was flashing a mirror; that she notified
At -the close of the evidence the defendant moved in writing that the judge upon all the evidence find the defendant not guilty. The motion was denied and the defendant duly excepted. .The judge, found the defendant guilty.
In support of his exceptions the defendant presents and argues the following issues: (1) “The evidence tending to prove the arrest of the defendant for an offence similar to the offence charged was incompetent to prove a record”; (2) ‘-The evidence tending to prove the arrest of the defendant for an offence similar to the offence charged was incompetent to prove the guilt of the defendant of the offence charged”; and (3) “There was a variance between the complaint and the proof and the motion for a directed finding of ‘not guilty’ should have been allowed.”
As contended by the defendant, it is plain that the testimony of the police officer “that the defendant admitted to him that he had been arrested previously for a similar offence” was not admissible, over the objection of the de
On the evidence the judge was not required to find the defendant not guilty, as requested. The proof did not establish that the defendant committed the offence charged “in a public place . . . wherein were great numbers of people,” because the defendant’s room was not a public place “wherein were great numbers of people.” But the offence charged and the evidence required to prove it do not depend on the number present. “It is enough if it be an intentional act of lewd exposure, offensive to one or more persons.” Commonwealth v. Cummings, 273 Mass. 229, 231.
Because of the improper admission of evidence, the exceptions are sustained.
So ordered.