Commonwealth v. Cummings

• Decision Date: 25 November 1930
• Citation: 273 Mass. 229
• Parties: COMMONWEALTH v. ALDEN W. CUMMINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 229

COMMONWEALTH v. ALDEN W. CUMMINGS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 25, 1930

October 6, 1930.

Present: RUGG, C.

J., CROSBY, PIERCE SANDERSON, & FIELD, JJ.

Lewd and Lascivious Conduct. Words, "Open."

Acts of "gross lewdness and lascivious behavior" were "open" within the meaning of that word as used in G.L.c. 272 Section 16, and warranted conviction upon a complaint under that statute, where it appeared that they were committed by the defendant and another man in the main public toilet room adjacent to the public waiting room of a railroad station that when other persons entered that room the defendant and his companion concealed themselves from indecent exposure but as soon as they were alone again resumed their lewd and lascivious conduct which they manifestly intended should not be observed by others and which was not seen by others using the room during the time they were being secretly watched and that the room was visited frequently for its legitimate uses by various patrons of the railroad corporation and usually not more than a few moments elapsed at any time without some person thus using it.

COMPLAINT, received and sworn to in the Municipal Court of the City of Boston on April 29, 1930.

On appeal to the Superior Court, the defendant waived a trial by jury and the complaint was heard by Williams, J., who found the defendant guilty and reported the case for determination by this court.

C.W. Rowley, for the defendant. D. Lasker, Assistant District Attorney, for the Commonwealth.

PIERCE, J. Following conviction and sentence in the Municipal Court of the city of Boston upon a complaint under G.L.c. 272, Section 16, the defendant appealed to the Superior Court.

In the Superior Court, the defendant filed in writing a waiver of his right to a trial by jury. At the trial in the Superior Court "after hearing and understanding all matters and things concerning the issue," the trial judge found the defendant guilty and sentenced him to pay a fine. Thereafter, the trial judge, being of opinion that certain requests for rulings made by the defendant and refused by the judge "were so important or doubtful as to require the decision of the Supreme Judicial Court for the Commonwealth, with the consent of the defendant, reported said case to said Supreme Judicial Court for the determination of said questions, and ordered all further proceedings in said case stayed, pending the decision of the said Supreme Judicial Court.

"

The defendant requested the following rulings: (1) "That upon all the evidence the Commonwealth has failed to make out a case and the defendant must be acquitted"; (2) "Unless the conduct of the defendant was intentionally open and public as distinguished from that which is intended to be private covered and concealed, the defendant must be acquitted"; and (3) "To warrant a conviction there must be proof of lewdness and indecency intentionally open. The word `open' as used in the statute requires proof that the defendant intended his acts to be of an open character." The judge refused requests 1 and 2 and the defendant duly excepted. The judge further ruled, subject to the exception of the defendant, that the indecent conduct set forth in the testimony, which need not be narrated, in the...