Stark v. State
| Decision Date | 05 January 1903 |
| Citation | 81 Miss. 397,33 So. 175 |
| Court | Mississippi Supreme Court |
| Parties | JAMES STARK v. STATE OF MISSISSIPPI |
October 1902
FROM the circuit court of Winston county HON. GUION Q. HALL Judge.
Stark appellant, was convicted of having indecently exposed the private parts of his person in a public place--a singing school--and was sentenced to thirty days' imprisonment. He appealed to the supreme court.
Reversed and remanded.
Daniel & Brantley, for appellant.
The intent that actuated the defendant in doing the act complained of is the gist of the offense. The exposure must have been "willfully and lewdly done." Code, 1892, § 1218. In this instruction the words "willfully and lewdly" modify only the word "exposed." The word "urinated" is not modified by the two words "willfully and lewdly;" the instruction thereby telling the jury that, if the defendant merely urinated in a public place or in the presence of two or more persons, then he is guilty as charged, thus eliminating the idea of willfulness and lewdness which must accompany the act under the statute to constitute the offense.
An act of exposure to be brought within the purview of this statute must have a tendency to excite lascivious desires or tend to scandalize. There is nothing in the whole body of the evidence in this case to give the act complained of that character.
William Williams, assistant attorney-general, for appellee.
The judgment must be within the limit fixed by law, but this court has power to correct the judgment.
Considered as a whole, the instructions given in this case correctly announce the law. Skates v. State, 64 Miss. 644. Upon the facts the verdict was manifestly right.
The indictment was drawn under code, § 1218, against the exposure of the person in a public place, etc. The statute requires the exhibition to be "willfully and lewdly" made. The indictment charges that it was "unlawfully and willfully" made, omitting the word "lewdly." If this may be left out, so may the word "willfully, " by the same process of reasoning leaving the whole charge to depend on the word "unlawfully." We hold, therefore, that the indictment is void on its face. The statute does not use the word "unlawfully." The pleader very properly did, but he failed to use a word essential to the description of the offense, so as to support the pleader's conclusion that the act was unlawful. Cook v. State, 72 Miss. 517 (17 So. 228); Dee v. Same, 68 Miss. 601 (9 So. 356); Lewis v. Same, 49 Miss. 354; Harrington v. Same, 54 Miss. 490; Roberts v. Same, 55 Miss. 421; and the other cases cited in Brame & A. Dig., p. 305, secs. 93-99, and those in George's Dig. p. 814, secs. 305-312. The...
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