Commonwealth v. Broadland
| Decision Date | 29 November 1943 |
| Citation | 51 N.E.2d 961,315 Mass. 20 |
| Parties | COMMONWEALTH v. OSCAR P. BROADLAND. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
October 25, 1943.
Present: FIELD, C.
J., DONAHUE, DOLAN COX, & RONAN, JJ.
Indecent Exposure. A defendant, charged by a complaint in the form set out in Section 79 of G.
L. (Ter. Ed.) c 277, with the common law offence of indecent exposure of his person in a public place, properly might be convicted upon evidence of an intentional act of such exposure although there was no evidence that he was seen in such act by more than one person.
COMPLAINT, received and sworn to in the Third District Court of Bristol on October 29, 1942.
On appeal to the Superior Court, the case was tried before Warner, J.
W. D. Stone, for the defendant. B. Horvitz, Assistant District Attorney, for the Commonwealth, submitted a brief.
This is a complaint against the defendant in two counts. The first count charged that the defendant "on the 22nd day of October, A. D. 1942, 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." The second count was the same as the first except that the date therein set forth was October 27, 1942. On appeal the case was tried in the Superior Court before a judge and a jury. The defendant moved for a directed verdict of not guilty. This motion was denied and the defendant excepted. The jury returned a verdict of guilty.
There was no error in the denial of the motion for a directed verdict. The defendant was charged in each count with the common law offence of indecent exposure. Each count followed the statutory form for an indictment or complaint for "Exposure of person." G. L. (Ter. Ed.) c. 277 Section 79, Schedule of Forms of Pleadings, page 3250.
1. The defendant contends that the evidence did not warrant a verdict of guilty on the first count of the complaint for the reason that there was no evidence that the defendant was seen in the act of exposure by more than one person, a nineteen year old girl.
It is true that there was no such evidence. But such evidence was not essential to support a conviction. In Commonwealth v. Bishop, 296 Mass. 459, 462, where, as in the present case, the defendant was charged with the common law offence of indecent exposure, it was held that the judge was not required to find the defendant not guilty, though the "proof did not establish that the defendant committed the offence charged" in a public place "wherein were great numbers of people," the court saying: The evidence warranted a finding of these essential facts. Unless the Bishop case is to be overruled it is decisive of the present case.
We are not convinced that the Bishop case should be overruled. The argument that it should be overruled is not based on the ground that the principle therein stated is not in conformity with proper standards of decency, or on the ground that the principle works injustice to the defendant. Clearly the evidence in either the Bishop case or the present case would have warranted a verdict of guilty of the statutory offence of "open and gross lewdness and lascivious behavior," G. L. (Ter. Ed.) c. 272, Section 16 -- an offence at least closely similar to the common law offence of indecent exposure -- if the statutory offence had been charged. Commonwealth v. Wardell, 128 Mass. 52 . Commonwealth v. Cummings, 273 Mass. 229. The effect upon the present case of overruling the Bishop case and holding, contrary to that case, that it was essential to proof of the common law offence that it be proved that the indecent exposure was seen by more than one person, would be to reverse the conviction of the defendant on the technical ground that he had been charged with the wrong offence, the common law offence, although the evidence clearly would have warranted a conviction of an offence against decency of a similar nature, the statutory offence. Of course the defendant could not rightly have been convicted of an offence that was not charged against him. But on the authority of Commonwealth v. Bishop, 296 Mass. 459 , the defendant was rightly convicted of the offence that was charged against him. The Bishop case was decided before the defendant's act was committed and before he was charged with an offence. The prosecution might naturally have relied upon the Bishop case...
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