Commonwealth v. Wardell
| Decision Date | 07 January 1880 |
| Citation | 128 Mass. 52 |
| Parties | Commonwealth v. Robert Wardell |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued September 16, 1879
Franklin. Indictment on the Gen. Sts. c. 165, § 6, the second count of which charged that, on January 17, 1879, at Coleraine, the defendant "did commit open and gross lewdness and lascivious behavior, and did then and there lewdly and lasciviously expose his private parts in a most indecent posture and situation in the presence of one Rosa Beauchamp." At the trial in the Superior Court, before Dewey, J., the jury returned a verdict of guilty; and the defendant alleged exceptions, the substance of which appears in the opinion.
Exceptions overruled.
A. De Wolf, for the defendant.
G Marston, Attorney General, for the Commonwealth.
OPINION
The second count in the indictment charges an offence under the Gen. Sts. c. 165, § 6, which provides punishment for lewd and lascivious cohabitation and for open and gross lewdness and lascivious behaviour. No objection was made to the form of the indictment. The evidence at the trial was that the defendant went to a private house not his own with some small articles to sell, and, finding no one there but a girl of eleven years, and a child of four, proceeded in the presence of both to make an indecent exposure of his person, and that the elder girl, who alone saw it, fled in fright to a neighboring house. This was evidence from which the jury would be fully justified in finding that the exposure was made with evil purpose by the defendant, with the intention that it should be seen by one or both the children present.
The judge declined to rule that the evidence was not sufficient to sustain the charge, and instructed the jury that, if the defendant lewdly, lasciviously, and openly exposed himself to the elder of the two persons named, they would be authorized to find him guilty. We are of opinion that there was no error in this instruction, and that the evidence produced was sufficient to support the verdict.
The conduct of the defendant in thus intentionally, indecently and offensively exposing himself in the house of another to two girls of tender years, without necessity or reasonable excuse, and in such a way as to produce alarm, proves that he was guilty of gross lewdness and lascivious behavior.
The defendant, however, insists that there was no proof of open lewdness within the meaning of the statute. He relies on the early case of Commonwealth v. Catlin, 1 Mass. 8, where it was decided that an indictment under this statute would not be supported by evidence of lewdness or lascivious behavior in secret. But in that case the acts proved accompanied acts of sexual intercourse, in which for all that appears both parties participated, without objection, and which both intended should be private, and attempted to conceal. In the case at bar, the conduct of the defendant was intentionally open and public, as distinguished from that which is intended to be private, covered and concealed. It was an act on his part intended to be seen by one or both the persons present; an act likely to become known, certain to offend public decency, and which was observed by at least one of those present. It was an intentional exposure of his person at a time and place and under circumstances calculated to corrupt public morals...
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...is "offensively exposing oneself * * * without necessity or reasonable excuse, and in such a way as to produce alarm," Commonwealth v. Wardell, 128 Mass. 52, 53 (1880); but see Commonwealth v. Bishop, 296 Mass. 459, 462, 6 N.E.2d 369, 370 (1937): "It is enough if it be an intentional act of......
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State v. Gardner
...37 Tex. Cr. R. 249, 39 S. W. 367, 66 Am. St. Rep. 802. And so are Webb v. State, 106 Ala. 52, 18 South. 491, and Commonwealth v. Wardell, 128 Mass. 52, 35 Am. Rep. 357, cited by the state. [12] IV. The court charged that lewdness is the unlawful indulgence of the animal desires, and is also......
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Balthazar v. Superior Ct. of Com. of Mass.
...(1968) concurs in that definition. Courts have long applied prohibitions against lascivious conduct to indecent exposure. Commonwealth v. Wardell, 128 Mass. 52 (1880); Cheesborough v. State, 255 So.2d 675 (Fla.1971); 50 Am. Jur.2d at With respect to the phrase "unnatural act", dictionaries ......
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State v. Gardner
...Iowa 680, 104 N.W. 281; Cosgrove v. State, (Tex.) 66 Am. St. 802; and so are Webb v. State, (Ala.) 106 Ala. 52, 18 So. 491; Commonwealth v. Wardell, 128 Mass. 52, cited the State. IV. The court charged that lewdness is the unlawful indulgence of the animal desires, and is also legally defin......