244 S.W. 962 | Mo. Ct. App. | 1922
Defendant was convicted under the last clause of section 3515, Revised Statutes 1919, providing that —
"Every person . . . who shall be guilty . . . of any open and notorious act of public indecency, grossly scandalous, shall, on conviction be adjudged guilty of a misdemeanor."
As punishment he was assessed a fine of $50 and costs.
The State has filed a motion to affirm the judgment on the ground that the defendant —
"Has not filed with this court a complete transcript of the record of the circuit court in said action showing a complete record and Bill of Exceptions therein."
"That there is no complete transcript of the record of the proceedings and Bill of Exceptions . . . on file in this honorable court."
This motion was filed at the March, 1922, term of this court. Since then a complete transcript of the record and Bill of Exceptions have been filed.
The facts in relation to the matter now raised are similar to those appearing in the case of State v. Johnson,
"A motion to dismiss the appeal was filed by respondent and overruled but the point still is urged and we are cited to State v. Dempsey,
The motion to affirm is overruled.
The information upon which the conviction was had was unnecessarily attacked in the lower court. The attack is renewed here. The information reads as follows:
"Charles K. Hart, prosecuting attorney within and for Linn County, Missouri, informs the court upon his official oath and upon his best information and belief, herewith filed, that Charles A. Wolf, on or about the 14th day of April, 1921, at and in the County of Linn and State of Missouri, then and there being, was then and there wilfully and unlawfully guilty of an open and notorious act of public indecency, grossly scandalous by then and there exhibiting his private parts in the view and in the presence of Stella Troutman, a married woman, against the peace and dignity of the State."
We think the information fails to state any offense under the clause of the statute we have quoted. An information substantially the same as this one, based upon a similar statute, was declared bad by the Supreme Court of Georgia. [Lockhart v. State,
"A person is not guilty of a notorious act of public indecency, within the meaning of this statute, unless the act is committed at a place where and at a time when more than one person was in a position to see it. [See Morris v. State,
It will be noted that our statute, unlike some statutes to be found, does not provide a punishment for an act of indecency or an obscene and indecent exhibition in a public place. The distinction between a statute of that kind and one similar to ours is pointed out in Moffit v. State,
It is insisted that if the indictment is not good under the statute it states an offense under the common law, which is sufficient. "An indecent exposure seen by one person only or capable of being seen by one person only is not an offense at common law." [29 Cyc. 1316.]
The judgment is reversed. All concur. *433