Noblett v. Com., 3996

• Decision Date: 10 September 1952
• Docket Number: No. 3996,3996
• Court: Virginia Supreme Court
• Parties: HERMAN C. NOBLETT v. COMMONWEALTH OF VIRGINIA. Record

Page 241

72 S.E.2d 241

194 Va. 241

HERMAN C. NOBLETT v. COMMONWEALTH OF VIRGINIA.

Record No. 3996.

Supreme Court of Appeals of Virginia

September 10, 1952.

Edmunds, Whitehead, Baldwin & Graves, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General, and Thomas M. Miller, Assistant Attorney General, for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, J., delivered the opinion of the court.

Herman C. Noblett was convicted by a jury on a warrant charging that he did 'unlawfully, lewdly and indecently expose his person to Betty Thomas, age 10, in a manner to shock the public sense of decency and morality. ' To the judgment entered upon that verdict we granted a writ of error to review the sufficiency of the evidence and the rulings of the trial court in granting and refusing certain instructions.

The little girl testified that as she was walking along North Princeton Circle, a public street near her home in a residential area of the city of Lynchburg, shortly before noon on June 15, 1951, she saw a Ford automobile parked, headed into an alley which intersects Princeton Circle. The car was so placed that it blocked her passage along the crosswalk extending across the alley. As she approached the car she saw a young man, whom she identified as the defendant, sitting in the driver's seat. As she neared the right-hand side of the car the defendant asked her whether she knew where 'Miss Jones lived.' She inquired, 'What Miss Jones?' and he replied, 'Miss Nannie Jones.' While this conversation was going on, she said, she had gotten within one or two feet of the car. She saw that he was 'exposing himself' and 'playing with' 'his privates.' She then proceeded on her way, going around the rear of the car which was blocking the crosswalk. After she had gotten around the rear of the car the defendant called to her and said, 'Did you see it?' 'Come here and let me show you something. ' To this solicitation she said 'No,' and ran on to her home which was 'four houses' away.

Upon reaching home the child related what had occurred and the matter was promptly reported to the police. The next day the child was interviewed by two members of the police department, to whom she gave an accurate description of the defendant and of his automobile.

On June 19 the defendant was apprehended while driving his car in the vicinity of the Thomas home. He denied the offense and consented to being taken before the child for possible identification. The child promptly and unhesitatingly identified him.

At the trial the defendant, twenty-three years of age and unmarried, took the stand and denied the charge which the child had made against him. He denied having seen her before, or that he was at or near the scene at the time the alleged offense took place. He testified that from about 10:30 a.m. until 2:30 p.m. on the day in question he was at his home on Harrison street and engaged in making certain telephone calls in the line of his employment as a salesman of household appliances for Sears Roebuck & Company.

The testimony of the defendant that he was at his home and thus occupied at the time of the incident was corroborated by that of his father and mother with whom he lived.

The case was tried below upon the theory that the warrant charged the accused with the common law offense of indecent exposure. By motions to strike, exceptions to the trial court's rulings on instructions, and a motion to set aside the verdict the defendant challenged the sufficiency of the evidence to sustain the charge.

The gist of the defendant's argument, as stated in his brief, is that 'an exposure of the person, irrespective of whether or not the place of exposure is a public one, made in the presence of only one person, is not a crime at common law.'

On the other hand, the Commonwealth contends that Instruction No. 2, granted by the lower court, correctly defines the crime of indecent exposure as applied to the present situation. That instruction reads: 'The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the accused on June 15, 1951, while sitting in an automobile on North Princeton Street, one of the public streets of the city of Lynchburg, intentionally exposed his private parts in a manner that same could reasonably have been seen by members of the public using said street and that the child Betty Thomas in using said street saw same, then the jury should find the accused guilty of indecent exposure of his person as charged.'

In 67 C.J.S., Obscenity, § 3, p. 23, it is said: 'Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law, and is indictable as such. ' The same principle is thus expressed in Winters v. People of State of New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.ed. 840: 'Acts of gross and open indecency or obscenity, injurious to public morals, are indictable at common law, as violative of the public policy that requires from the offender retribution for acts that flaunt accepted standards of conduct. 1 Bishop, Criminal Law, 9th Ed., § 500; Wharton, Criminal Law, 12th Ed., § 16.'

In 67 C.J.S., Obscenity, § 5, p. 25, the author says: '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, and is made an offense by a number of statutes and ordinances. * * * ' The text is fully supported by the cited cases. Among the recent cases discussing the common law offense are Commonwealth v. Hamilton, 237 Ky. 682, 36 S.W. (2d) 342; Case v. Commonwealth, 313 Ky. 374, 231 S.W. (2d) 86; Commonwealth v. Broadland, 315 Mass. 20, 51 N.E. (2d) 961. See also, 33 Am. Jur., Lewdness, etc., § 7, p. 19; Annotation, 93 A.L.R. 996.

Ordinarily, although not necessarily, the place where the exposure is made must be public. Indecent exposure on a street or public highway 'so that one person sees, and others passing by can see, is an offense' at common law. 67 C.J.S., Obscenity, § 5, p. 26.

In State v. Walter, 16 Del. (2 Marv.) 444, 43 A. 253, the court upheld an instruction which told the jury that exposure 'on a public highway, within the view not only of the prosecuting witness, but also within the possible view of others who might be passing to and fro along said highway,' constituted the common law offense of indecent public exposure.

Recently, in the case of Case v. Commonwealth, supra, it was held that an indecent exposure must be either in the actual presence and sight of others, or in such a place or under such circumstances that the exhibition is liable to be seen by others. (231 S.W. (2d) at page 87.)

In Commonwealth v. Bishop, 296 Mass. 459, 6 N.E. (2d) 369, 370, it was said that the offense in a public place does not depend upon the number of persons present, but 'It is enough if it be an intentional act of lewd exposure, offensive to one or more persons.'

Likelihood that the act in a public place may be seen by a number of casual observers is sufficient. State v. Goldstein, 72 N.J.L. 336, 62 A. 1006, 1007 (affirmed without opinion, 74 N.J.L. 598, 65 A. 1119).

Of course, it must appear that the exposure was intentional and not merely accidental. 67 C.J.S., Obscenity, § 5, p. 26; 33 Am. Jur., Lewdness, etc., § 7, p. 19.

Morris v. State, 109 Ga. 351, 34 S.E. 577, strongly relied upon by the defendant, is not authority for the proposition that an indecent exposure, on a public street, in the presence of a single other person is not a crime at common law. In that case the accused was charged with the violation of a statute making 'any notorious act of public indecency, tending to debauch the morals,' a misdemeanor. The offense was alleged to have taken place in a field not on or near a public highway, and it was there held that such conduct was not a 'notorious...