State v. Muller
| Decision Date | 22 May 1978 |
| Docket Number | No. 61348,61348 |
| Citation | 365 So.2d 464 |
| Parties | STATE of Louisiana v. Leo J. MULLER, Sr. |
| Court | Louisiana Supreme Court |
John Wilson Reed, New Orleans, for defendant-relator.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Wilton E. Bland, III, Asst. Dist. Attys., for plaintiff-respondent.
Defendant Leo J. Muller, Sr., was charged with obscenity, in that he did indecently and publicly expose his penis in the presence of another person in a location open to public view or the people at large with the intent of arousing sexual desire. In a former review of a bench trial conviction, we remanded the case to the trial judge on a finding that defendant had not knowingly and intelligently waived his right to trial by jury. State v. Muller, 351 So.2d 143 (La.1977). In doing so the Court pretermitted consideration of defendant's motion to quash the bill of information.
In the trial court on remand defendant reurged the motion to quash, alleging that it fails to charge an offense which is punishable under a valid statute. More particularly, the motion states the place of the offense as specified in the bill of particulars, a supermarket, is not a place contemplated by Section 106 of Title 14 of the Revised Statutes. Insofar as it is applicable to this motion to quash, the statute provides:
In a memorandum to support defendant's motion to quash it is contended that the inside of an enclosed supermarket is not a place covered by the statute. In reply the State's attorney argues that the supermarket is any location or place open to the view of the public or the people at large. The trial judge denied the motion to quash, and certiorari was granted on defendant's application. 354 So.2d 205.
Relying upon the decision in Nelson v. Natchez, 197 Miss. 26, 19 So.2d 747 (1944), this Court in the original opinion in State v. Christine, 239 La. 259, 118 So.2d 403 (1960), Rev'd. on rehearing on other grounds, approved this definition of "public place" as the term was used in a city ordinance, making it a crime for any person to profanely swear or curse or use vulgar or indecent language in any public place within the city:
According to the definition already approved by this Court, a public place is not limited to streets, parks, beaches, etc. It is "any location" which is open to the view of the public to which the statute applies. Surely, within this definition, a supermarket must be considered as a building wherein "by general invitation, members of the public attend for reasons of business . . . and are welcome so long as they conform to what is customarily there done." If that be so, the supermarket is a public place as contemplated by the definition in State v. Christine and in the statute before us.
And a holding that the supermarket is a public place as that phrase is used in the statute is not altered by the illustrative clause "such as a street, highway, neutral ground, sidewalk, park, beach, riverbank or other place or location viewable therefrom." "Such as" has traditionally been used in Louisiana law to set off an illustrative list. Realizing as we do that the Civil Code does not pertain to criminal law, the rule of reason that Article 3556(29) expounds is one which has prevailed here at least since 1825. It reads,
Courts are directed by Section 3 to take a reasonable and common sense view of the evil at which a statute is directed and the protection it is designed to afford; and when these are within the letter of the statute, the enactment is to be construed in accordance with its purpose, although its letter would admit a narrower interpretation. State v. Butler, 331 So.2d 425 (La.1976). The conduct charged here can reasonably be considered as the evil contemplated by the legislature.
For the reasons assigned, the ruling of the trial judge is affirmed, and the case is remanded for further proceedings.
DENNIS, J., dissents for the reasons assigned by DIXON and CALOGERO, JJ.
R.S. 14:106 A(1) seems to limit the places where exposure is made criminal to those like the ones listed as illustrations, which do not include a supermarket.
Louisiana Revised Statute 14:106 A(1) is a criminal statute and as such it must be construed strictly, any ambiguity being resolved in favor of lenity. State v. McCarroll, 337 So.2d 475 (La.1976); State v. Gyles, 313 So.2d 799 (La.1975); State v. Patterson, 259 La. 508, 250 So.2d 721 (1971). The statute in question proscribes obscenity "in any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom . . .." It seems to me that the statutory list of examples reflects the legislative determination to proscribe obscenity only in places like those listed above which are out of doors and in the public domain, or another place viewable from that sort of place. I believe that when R.S. 14:106 A(1) is strictly construed it becomes apparent that a supermarket is not the sort of place "open to the view of the public or the people at large" contemplated by the statute.
For this reason I respectfully dissent.
ON REHEARING
The narrow issue presented for the Court's determination is whether a supermarket is "any location or place open to the view of the public or the people at large such as a street, highway, neutral ground, sidewalk, park, beach, river bank or other place or location viewable therefrom . . .", in view of the denunciation of intentional exposure of certain parts of the anatomy in such places by La.R.S. 14:106, defining the crime of obscenity. In our original opinion herein we concluded that such intentional exposure in a supermarket is proscribed by the definition of the crime of obscenity set forth in the statute. To arrive at our conclusion we proceeded from the premise that La.R.S. 14:106 forbids certain conduct in any "public place", drawing on the definition of "public place" approved by the Court in the original opinion in State v. Christine, 239 La. 259, 118 So.2d 403 (1960), Rev'd on rehearing on other grounds, and deciding that a supermarket is a public place.
Because the words, "public place"...
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...on those occasions this Court has not found the phrase's supposed "vagueness" to be an obstacle to its application. See State v. Muller, 365 So.2d 464, 466-467 (La.1978) (on rehearing ); State v. Christine, 239 La. 259, 118 So.2d 403, 405-406 (1960), citing Nelson v. Natchez, 197 Miss. 26, ......
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...this Court has in the past interpreted the meaning of "public" within the context of other statutes in the criminal code. In State v. Muller, 365 So.2d 464 (La.1978), we determined while examining our obscenity statute an enclosed supermarket is not "a location or place open to the view of ......
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State v. Walters, 82-KA-1422
... ... Muller, 365 So.2d 464 (La.1978), a case involving a defendant who intentionally exposed his penis in a supermarket. The Muller decision did not turn on whether defendant acted "with intent to arouse sexual desire" or whether he intentionally exposed himself, but on whether a supermarket was a place open ... ...