Rittenour v. District of Columbia

• Decision Date: 19 August 1960
• Docket Number: No. 2583.,2583.
• Citation: 163 A.2d 558
• Parties: Calvin L. RITTENOUR, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

163 A.2d 558

Calvin L. RITTENOUR, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 2583.

Municipal Court of Appeals for the District of Columbia.

Argued June 27, 1960.

Decided August 19, 1960.

Jacob A. Stein, Washington, D. C., for appellant. Walter W. Johnson, Jr., Washington, D. C., also entered an appearance for appellant.

H. Thomas Sisk, Asst. Corporation Counsel, Washington, D. C., with whom Chester H. Gray, Corporation Counsel, Milton D. Korman, Principal Asst. Corporation Counsel, and Hubert B. Pair, Asst. Corporation Counsel, Washington, D. C., were on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This appeal is from a conviction on a charge of committing a "lewd, obscene, or indecent act in the District of Columbia."¹ The conviction was based on the testimony of two police officers, members of the Morals Division (appellant neither testified nor offered any evidence on his behalf), which was substantially the following:

As the result of a complaint received from the Probation Department of the Municipal Court, Officer Arscott made a telephone call to appellant at his home. The officer represented to appellant that he was "down and out," did not have "much money" and asked if he could stay at appellant's "place" until he "could catch a bus out of town." Appellant replied that it would be all right. Officers Arscott and Fochett then went to appellant's home, arriving there about 9:30 o'clock in the evening. Fochett remained outside and Arscott went to the door and was admitted by appellant.

Inside the home Arscott told appellant he had just gotten out of the Navy, that he was from New York and was down and out. Appellant asked Arscott who had told him of appellant's "place of business" and Arscott said he had learned of it from some one he met at the bus station. After a few minutes Arscott asked for a drink of water and was told to follow appellant into the kitchen. There appellant gave him a glass of water and then placed his hand on Arscott's privates and made a comment concerning them. Arscott backed away and asked what he meant. Twice again appellant touched Arscott's privates and to Arscott's inquiry as to what he had on his mind, appellant made a reply indicating an intention to have homosexual relations with him. Arscott then arrested appellant and called Fochett who joined them in the house. Appellant then admitted to the officers that he was a homosexual and had had sexual relations with some of the men who came to his home.

We think the government did not prove the commission of a "lewd, obscene, or indecent act" within the meaning of Code 1931, § 22-1112(a), Supp. VIII. The common-law conception of a lewd, obscene, or indecent act apparently comprehended only behavior that was open or public; an act done privately in the presence of only one other person who solicited or consented to the act did not fall within conduct enjoined by the common law. See 33 Am. Jur., Lewdness, Indecency and Obscenity § 7. Our former statute² clearly reflected the common-law attitude in its prohibition of indecent exposure in public or in a place from which the act could be seen. In adding two other crimes of a similar nature to indecent exposure in the present...