Hulsey v. State
| Decision Date | 24 March 1948 |
| Docket Number | A-10794. |
| Citation | 192 P.2d 301,86 Okla.Crim. 273 |
| Parties | HULSEY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from County Court, Carter County; John E. McCain, Judge.
Mont Hulsey was convicted of committing an act which openly outraged public decency, and he appeals.
Reversed and remanded with instructions.
Syllabus by the Court.
1. To declare what constitutes a crime is the exclusive province of the legislature, but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.
2. The legislature, in creating an offense, may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result.
3. The statutory provision making it an offense to commit any act which openly outrages public decency and is injurious to public morals, is directed against acts which are committed openly and affect the public. Tit. 21, § 22, O.S.1941.
4. The word 'openly' as used in statutory provision that every person who wilfully and wrongfully commits any act which 'openly' outrages public decency, and which is injurious to public morals, is guilty of a misdemeanor, means in an open manner, not clandestinely, not privately or in private, and is used in the sense of not being concealed, as opposed to being hidden or secret. Tit. 21, § 22, O.S.1941.
5. In determining the sufficiency of an information the character of the offense will be determined by an examination of the charging part of the information, and the court will not be bound by the descriptive label given to the crime by the person who prepared the information.
6. An information is sufficient that alleges all of the essential elements of the offense in ordinary language sufficiently to apprise the defendant of what he must be prepared to meet.
7. Although the crime charged in the information was styled 'Taking Indecent Liberties With the Person of a Child', it would be sustained as sufficient to charge an offense under provision of Tit. 21, § 22 O.S.1941, commonly known as the statute against openly outraging public decency where the charging part of the information sufficiently alleged all of the essential elements of such offense.
8. Prior to the passage and approval of House Bill 397 of the Twentieth Legislature on May 5, 1945, 21 O.S.Supp. § 1123 there was no Oklahoma statute specifically defining and prohibiting as a criminal act, 'Taking Indecent Liberties With the Person of a Child'.
9. The commission of reprehensible indecent acts by a man of mature years with a female child of tender years, where no physical injury resulted, and where the acts complained of were done in private, does not come within the provisions of Tit. 21 § 22, O.S.1941, commonly known as the statute against openly outraging public decency.
10. Court did not sufficiently instruct the jury where he failed to instruct them that before they could find the defendant guilty of an act under the general statute prohibiting all acts which openly outraged public decency and which is injurious to public morals, that such act must be done in an open manner and not privately, and the failure to give such instruction where the evidence is disputed as to whether the alleged act was publicly committed, is reversible error.
Sigler & Jackson and Champion, Champion & Wallace, all of Ardmore, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
The defendant, Mont Hulsey, was charged by information filed in the County Court of Carter county with the alleged crime of 'Taking Indecent Liberties with the Person of a Child,' was tried, convicted, and sentenced to serve one year in the County Jail and has appealed.
The proof of the State showed that three workmen while engaged in repairing a roof on a building on main street in the City of Ardmore saw the defendant sitting in the seat of an automobile parked on main street with a small girl. The defendant had raised the girl's dress and seemed to be playing with her privates. The men watched the occurrence for a few minutes and saw the young girl leave and go into a department store. The men notified the Chief of Police who later arrested defendant.
Geneva Lynn Shankles testified that she was ten years of age on April 18, 1945, at the time of the alleged occurrence between her and defendant; that she had known the defendant about six years; that she saw him parked in front of the Squeeze Inn and he called her over to the car; that defendant opened the car door and she got in and sat down; that he pulled up her dress and commenced to play with her privates; that she sat there with him and let him play for fifteen minutes; that he then gave her fifteen cents and she left and went to Daube's store. She further testified that he had played with her in that manner on other occasions but did not give any specific dates.
On behalf of the defendant a Doctor testified that the defendant was a veteran of World War I; that he had had a nervous breakdown and had been sent to the Veterans Hospital at Muskogee for treatment; that upon being released from the Veterans Hospital the Doctor had had him under observation and treatment for his nervous ailment. He testified on cross-examination that a large part of defendant's trouble had been aggravated by his drinking.
The defendant testified in his own behalf and said that he had known the little girl for about six years; that on the day previous to the occurrence he had worked at the Jones Furniture Store and commenced to feel badly; that he commenced drinking and did not remember anything; that he was later arrested by the Chief of Police; that he had two sons and a daughter and three grandchildren. On cross-examination he testified that he had drunk about five bottles of beer and was parked in his automobile waiting for his wife to get off from work. Defendant also introduced proof of his good reputation in the community where he resided as being a peaceable, lawabiding citizen.
The first proposition presented on behalf of defendant is that the evidence is insufficient to sustain a conviction under the general statute relied upon by the State which provides:
'Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.' Tit. 21, § 22, O.S.1941.
This statute has been construed by this Court in a number of cases. In the early case of Steward et al. v. State, 4 Okl.Cr. 564, 109 P. 243, 32 L.R.A.,N.S., 505, it is stated:
'It is the exclusive province of the Legislature to declare what shall constitute a crime, but it is the duty of the courts to determine whether a particular act done or omitted is within the intendment of a general statute.
'The Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result.'
In State v. Lawrence, 9 Okl.Cr. 16, 130 P. 508, it was held that before an act could be punishable under the above statute, it must be publicly and openly done.
In the later case of Roberts et al. v. State, 27 Okl.Cr. 97, 225 P. 553, 555, this Court in discussing the applicability of said statute stated:
'The true rule of interpretation of this statute should be and is that any act which is so grossly immoral as to shock the sense of decency of self-respecting people as a whole, or any act manifestly indecent and repugnant to the usages and customs of civilized society, or any act which is unquestionably criminal, though not covered by any other criminal statute, is a violation of the act.'
In West v. State, 27 Okl.Cr. 125, 225 P. 556, the defendant was charged with committing acts similar to those allegedly committed by defendant in the instant case, except that the acts were committed in a private home and not in a public place. In reversing the conviction it was stated:
See also Hall v. State, ...
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