State v. Metje, 28944
| Decision Date | 15 June 1954 |
| Docket Number | No. 28944,28944 |
| Parties | STATE v. METJE. |
| Court | Missouri Court of Appeals |
J. Grant Frye, Cape Girardeau, for appellant.
No brief filed by respondent.
This case originated in the Circuit Court of Cape Girardeau County upon the filing of an information charging that the defendant (appellant) did 'engage in open, gross lewdness and lascivious behavior, grossly scandalous, by then and there having his private parts exposed in a public place in the presence of a female, to-wit: _____.'
A jury being waived the cause was tried before the court and resulted in a finding that defendant was guilty. His punishment was fixed at imprisonment in the county jail for a period of 10 days. From the ensuing judgment and sentence the defendant has duly appealed thus causing the case to be transferred to this court for our review.
The evidence was brief. Only one witness, a police officer, testified at the trial. He related that at 2:35 a.m. on June 29, 1953, he was riding in a patrol car and received a message from the police station that someone had reported a lady screaming. The officer drove immediately to the vicinity indicated and entered the circular driveway on the south side of the Old Armour Cemetery in Cape Girardeau. After proceeding on the driveway for about 50 feet the car lights focused upon the defendant who was lying on top of a woman about 100 feet further up the driveway. It appears that the couple were lying on a blanket which had been placed upon a small terrace about five feet from the north edge of the roadway.
Upon the approach of the police car both the defendant and his companion jumped to their feet, the girl running over beyond his car while the defendant remained at the scene holding the blanket in front of his person. At the command of the officer the defendant dropped the blanket revealing that the only clothing he had on was an undershirt and pair of shoes. His private parts were exposed. It is obvious that he was dressed in this same manner at the time the automobile approached the scene. The driveway in question was used by the public but it is evident that it was used principally by people desiring to enter the cemetery. The defendant could not be seen from the city street that ran in front of the cemetery.
It is argued by the defendant that under the evidence he could not have been guilty of the offense charged. His contention is clearly stated in the opening sentence of his printed argument as follows, 'Appellant's position is that he was having a private and intimate affair with _____ at an hour of absolute darkness, at a time and place where no one could have any occasion to be and at a place in the cemetery itself where he would not ordinarily be discovered; and that he did not commit an act in any 'open' manner nor in a 'public' place within the meaning of the statute.'
The information is based upon the latter portion of Section 563.150 RSMo 1949, V.A.M.S. To constitute an offense under this provision the conduct complained of must have occurred in a public place or have been committed in the actual presence of another person. State v. Parker, 233 Mo.App. 1037, 128 S.W.2d 288. The allegation that the act was in the presence of the female companion of defendant would not be sufficient under the decisions. State v. Wolf, 211 Mo.App. 429, 244 S.W. 962. It is true that the act need not be actually offensive to those present. State v. Pedigo, 190 Mo.App. 293, 176 S.W. 556. However, to hold that the presence of the other participant in an act of intercourse is sufficient to make the occurrence a violation of the statute would result in constituting every act of fornication a crime regardless of the privacy that may surround the same. To so rule would be contrary to the previous decisions of our courts and could well be considered legislation by judicial construction. The State v. Phillips, 49 Mo.App. 325; State v. Parker, supra. We have concluded, however, that since the information alleges that the exposure was in a public place it is sufficient to charge an offense and that the allegation relating to the presence of the other person may be disregarded as surplusage. State v. Long, 341 Mo. 766, 108 S.W.2d 388.
The only remaining question for our decision is whether the place where defendant was found would be considered 'public'. In considering this question we must bear in mind that it is not the purpose of this statute to establish a code of morals or to correct every moral dereliction but to suppress open and notorious acts having a tendency to outrage public decency and corrupt the public morals. State v....
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State v. Parker
...290 (1939), and suppress sexual exposure having a tendency to outrage public decency and corrupt the public morals. State v. Metje, 269 S.W.2d 128, 130 (Mo.App.1954). In accordance with this purpose and the common law principles governing indecent exposure, see e.g., State v. Appling, 25 Mo......
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State v. Bouse
..."gross," as related to lewd acts, and "open and notorious," as related to public indecency, as requiring presence. See State v. Metje, 269 S.W.2d 128, 130 (Mo.App.1954) ("To constitute an offense under [§ 563.150] the conduct complained of must have occurred in a public place or have been c......
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...that the public has theoretical access to a place does not necessarily support a finding that the place is public. In State v. Metje, 269 S.W.2d 128, 131 (Mo.App.1954), the court aptly observed: "It ... seems obvious that a place may be public at some times and private at others.... In the ......