Morris v. State

• Decision Date: 01 December 1899
• Citation: 34 S.E. 577,109 Ga. 351
• Parties: MORRIS v. STATE.
• Court: Georgia Supreme Court

34 S.E. 577

109 Ga. 351

MORRIS v. STATE.

Supreme Court of Georgia

December 1, 1899

Syllabus by the Court.

The act proved in this case did not constitute a violation of so much of section 390 of the Penal Code as makes criminal a "notorious act of public indecency." To render any act notorious and public, it must have been committed at a place where it might have been seen by more than one person.

Error from superior court, Gwinnett county; R. B. Russell, Judge.

Gilbert Morris was convicted of crime, and from a judgment of the superior court overruling certiorari he brings error. Reversed.

Oscar Brown, for plaintiff in error.

C. H Brand, Sol. Gen., for the State.

SIMMONS C.J.

Morris was put upon his trial in the city court of Gwinnett on an accusation charging that he did "publicly and indecently expose his secret or private parts of his person in the presence of one Mrs. Ella Benton." He was convicted, and sued out a writ of certiorari to the superior court. Upon the hearing of the writ in that court, the certiorari was overruled, and the conviction affirmed, whereupon he filed his bill of exceptions to this court, alleging error in the judgment of the superior court overruling the certiorari. There are various allegations of error set out in the petition for certiorari, but in the view we take of the case it is only necessary to discuss the one which alleges that the verdict is contrary to the law and the evidence. The evidence of the offense, in substance, is that the accused was plowing in a field 175 yards from the house wherein Mrs Benton resided; that there was a railroad embankment between the house and where the accused was plowing, waist high, and that the ground between the house and the filed was not cleared; that the accused stopped his plow, leaned against the plow stock, unbuttoned his pantaloons, pulled up his shirt, and exposed his private parts to her view, and made a gesture for the purpose of calling attention to the same. Several witnesses testified that she could not possibly have seen the private parts of the accused from where she stood in the house to where she said he stood when the act was committed. But she swore his positively that she did see him expose his private parts. It is contended by the counsel for the plaintiff in error that, admitting her evidence to be true, the evidence did not make out the offense as defined in section 390 of the Penal Code. That section reads as follows "Any person who shall be guilty of open lewdness, or any notorious act of public indecency, tending to debauch the morals, or of keeping open tippling-houses on the Sabbath day, or Sabbath night, shall be guilty of a misdemeanor." It will thus be seen that this section embraces three offenses,--open lewdness, a notorious act of public indecency, and keeping open tippling houses on the Sabbath. In order to constitute the offense of which Morris was convicted, the evidence must show that it was notorious and public. This definition of public indecency seems to have been taken from the common law. We find the same definition in the Penal Code as early as 1817, when the penal laws were codified by the legislature. Schley's Dig. p. 380. The construction put upon this clause by the English courts was that the act must be in a public place, and where more than one person could have seen it; and that the crime was not committed by exposing the person to only one individual. Some of the...