Messina v. State

• Decision Date: 05 April 1957
• Docket Number: No. 137,137
• Citation: 212 Md. 602,130 A.2d 578
• Parties: Peter S. MESSINA v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 602

212 Md. 602

130 A.2d 578

Peter S. MESSINA v. STATE of Maryland.

No. 137.

Court of Appeals of Maryland.

April 5, 1957.

Morgan L. Amaimo, Baltimore, for appellant.

Frank T. Gray, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty., and Joseph G. Koutz, Asst. State's Atty., Baltimore, on the brief), for appellee.

Argued before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

The court, sitting without a jury, found the appellant guilty of the common law crime of indecent exposure after overruling a motion for a directed verdict at the conclusion of all of the evidence. Under the rules, we do not decide whether the appellant was guilty beyond a reasonable doubt; merely, whether in law the evidence is sufficient to permit the trial court to have done so, and can set the verdict aside only if his conclusions from the evidence were clearly erroneous.

The accusers of the appellant are two thirteen year old girls who were walking on the sidewalk along Northern Parkway about a block from Harford Road, both busy streets in Baltimore, when they became aware that the appellant, sitting in his parked automobile, was giving them a 'funny' look, a look that 'made us feel funny'. The girl who was walking next to the curb looked in the car and saw an 'indecent exposure', saw the appellant 'expose himself'. She told the other girl what she had seen and said to hurry on, to walk faster. The other girl took the license number and then, as the appellant started up the car and made a U turn, each girl again noted the license number. Each of the girls identified the automobile as a green Buick convertible and, at the trial, identified the appellant as the man who had been in the car. Both said they had seen the same man in the same car parked on Northern Parkway several months before, with the car door open, and that one of them had seen him indecently expose himself. On that occasion, they did not have a chance to get the license number because 'we were both so scared, we didn't know what to do.' The appellant owns and drives a green Buick convertible and admitted on the stand that he was near the scene of the occurrence about the time of the happening and that, on that day but on a different street, he had seen some girls writing down license numbers of automobiles, including his, but denied everything else that would associate him in any way with the crime. He could think of no reason why the girls would accuse him.

We think the evidence was sufficient to permit a finding of guilt by the trial court. The testimony of the girls as to what had been seen was in general terms, but the record leaves no doubt that everyone in the court room, including the appellant and his counsel, acted on the assumption that the State had offered testimony intended to mean, and meaning, that the appellant on both occasions exposed his private parts. No effort was made by cross-examination, or otherwise, to show that the accusing girl had seen less than this and the trier of the facts properly could have found, as he did, that this is what happened. Indeed, appellant makes no point here as to the insufficiency of the evidence on this aspect of the case. He relies on the claim that since only one person saw the indecency there was not such a public exposure, such an affront to public decency, as the common law requires to make the conduct a crime.

The law is not as the appellant suggests. 'Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law * * *. Ordinarily, * * * the place where the exposure is made must be public. What constitutes a public place within the meaning of this offense depends on the circumstances of the case. The place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers * * *. Indecent exposure on a public highway so that one person sees, and others passing by can see, is an offense * * *.' 67 C.J.S., Obscenity, § 5. Hochheimer on Crime and Criminal Procedure, 2nd Ed., p. 430, defines the common law crime of indecent exposure as consisting of 'exposure in public of the entire person, or of parts that should not be exhibited. An exposure is 'public,' or in a 'public place,' if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.' A unmber of cases have held that it is immaterial that the exposure is seen by only one person if it occurs at a place open or exposed to the view of the public and where anyone who happened to have been nearby could have seen...