State v. Peery, 34360.
| Decision Date | 18 July 1947 |
| Docket Number | No. 34360.,No. 34380.,34360.,34380. |
| Citation | 224 Minn. 346,28 N.W.2d 851 |
| Parties | STATE v. PEERY. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of St. Paul; John L. Rounds, Judge.
Nelson D. Peery was convicted of indecent exposure either in violation of municipal ordinance of City of St. Paul or of M.S.A. § 617.23, and he appeals from the judgment of conviction and from order vacating a prior order granting a new trial.
Reversed with directions to enter judgment discharging defendant.
Francis M. Smith, Warren E. Burger, Irving Clark, Samuel Lipschultz, Archie Gingold, Margaret H. Kane and Daniel Dennis O'Connell, all of St. Paul and Douglas Hall and Kenneth J. Enkel, both of Minneapolis, for appellant.
Bruce J. Broady, Corp. Counsel, James F. Sullivan, John J. McNeil and Frank B. Daugherty, Asst. Corp. Counsel, all of St. Paul, for the State.
Two appeals involving a conviction for indecent exposure, one from an order of the municipal court of St. Paul vacating its prior order granting defendant a new trial, and the other from a subsequent order denying defendant's motion for a new trial on the ground of newly discovered evidence.
August 13, 1946, defendant, then a student at Concordia College in St. Paul, was arrested without warrant and held without bail until August 16, 1946, when he was brought to trial in the municipal court of St. Paul on a "tab charge" of "Indecent Exposure." On the criminal register of that date the proceeding was entitled "State vs. Nelson D. Peery." Otherwise there is no indication whether defendant was tried for violating municipal ordinance paragraph 452, 1941 Compiled Ordinances of the City of St. Paul, or M.S.A. § 617.23, both of which relate to indecent exposure. The register further indicates that upon arraignment on that date defendant entered a plea of "not guilty," and his trial proceeded forthwith; that some six witnesses were then called for the state, while defendant and one other witness testified on defendant's behalf; and that the court thereupon found defendant guilty and ordered him imprisoned in the workhouse of the city of St. Paul for a term of 90 days.
Subsequently, on August 30, 1946, the trial court, in response to defendant's motion, vacated its prior judgment of conviction and granted defendant a new trial. No memorandum accompanied this order. Thereafter, on September 10, 1946, a written complaint was filed by the prosecution, signed by a police officer of the city of St. Paul, and entitled, "City vs. Nelson D. Peery," charging the latter with committing misconduct on August 13, 1946, in exposing his person in the windows of the Men's Dormitory of Concordia College, where he then resided, in violation of ordinance No. 1856 (which is paragraph 440) of 1941 Compiled Ordinances of the City of St. Paul. The officer signing this complaint was not a witness to the acts complained of. Ordinance No. 1856 (paragraph 440) relates to the maintenance of houses of ill fame and acts committed therein. Obviously, it has no application here, and the state makes no claim that defendant's conviction was one for its violation. No proceedings were ever had under that complaint.
On September 21, 1946, the trial court, upon the state's motion, vacated its prior order of August 30, 1946, wherein it had vacated its judgment of conviction and ordered a new trial, and ordered defendant committed to the workhouse forthwith. On October 10, 1946, the court denied defendant's motion for a new trial on the ground of newly discovered evidence. Defendant has appealed from both orders, having been released on bail pending the outcome of the appeals. The newly discovered evidence, in substance, was to the effect that one of the state's witnesses had previously pleaded guilty to the offense of defrauding the Ramsey County Welfare Board.
The evidence presented at the trial indicates that defendant, 23 years of age, a veteran of four major campaigns of the United States army in the South Pacific and at the time in question a seminar student at Concordia College awaiting the opening of the fall term at the University of Minnesota, occupied a corner groundfloor room in the Men's Dormitory at Concordia. The room has two windows, one opening to the west and the other to the north. About 15 to 20 feet from the west window, a cement sidewalk passes through the college grounds. It is used by the public generally and particularly by employes going to and coming from their work at the Brown & Bigelow plant nearby.
The state's witnesses here, several young ladies employed by Brown & Bigelow, testified in substance that on several occasions in passing by the Men's Dormitory on their way from work about 5 p. m. they had observed defendant unclothed, standing in front of or near the north window of his room, and that he later walked across and stood in the same condition near the west window; that on one such occasion they had observed him raise the west window shade and stand near this window exposed to view, entirely unclothed. There is no evidence that defendant had signaled or called to these witnesses or otherwise endeavored to direct their attention to himself.
In his defense, defendant testified that he returned to his room in the dormitory about 5 p. m. each evening; that it was his custom then to change his work clothing, take a shower in the basement of the dormitory, return to his room, and dress for his evening meal and classes. He denied that he had intentionally exposed himself. He admitted that on some occasions he may have neglected to draw the shades, but testified that he was not conscious of passersby on the days in question; that he was careful as to his conduct at all times because of his high regard for his classmates who occupied neighboring dormitories. He stated that on at least one of the dates testified to by the state's witnesses he had not worked or changed his clothing at the time such witnesses had testified that they had passed his quarters and observed him.
Dr. Hugo W. Thompson, professor of Religion and Philosophy at Macalaster College in St. Paul, testified that he was in charge of the industrial seminar at Concordia College attended by defendant; that the classes therein were held at night; that the students, including defendant, taking such course had been carefully selected from other colleges and were required, as part of the seminar, to be employed during the daytime; that defendant had always conducted himself as a gentleman, and the records of the project so indicated; that he (Dr. Thompson) had often used the walk in front of the Men's Dormitory at about the same time of day the state's witnesses passed defendant's quarters; that on such occasions he had often looked toward the Men's Dormitory, including defendant's room, but at no time had he witnessed any such incidents as testified to by the state's witnesses; that the walk is on college property and not a public street; that west of the walk is a thick hedge; that it is 40 feet from the west wall of the building to said walk; that defendant's room could be seen from his office across the way, but at no time had he seen any conduct on the part of defendant such as testified to by the state's witnesses. A portion of the settled case which the trial court certified as true and correct stated:
On appeal, defendant urges (1) that neither under § 617.23 nor the ordinance, paragraph 452, did the evidence establish that his exposure was wilful or intentionally lewd, and hence that such evidence is insufficient to sustain his conviction thereunder; (2) that because of the failure of the "tab charge" sufficiently to describe the ordinance or statute whereunder he was accused and because of the failure to permit adequate preparation for his defense he was denied the due process guaranteed by U. S. Const. Amend. XIV, and Minn. Const. art. 1, § 7; (3) that the trial court erred in vacating its order granting a new trial and vacating its prior conviction, after the state had waived its right to object thereto by subsequently filing the written complaint hereinbefore described; and (4) that the court erred in denying defendant's subsequent motions for trial by jury and a new trial because of newly discovered evidence.
1. The principle is well established that under either the ordinance or the statute, before the offense of indecent exposure can be established, the evidence must be sufficient to sustain a finding that the misconduct complained of was committed with the deliberate intent of being indecent or lewd. Ordinary acts or conduct involving exposure of the person as the result of carelessness or thoughtlessness do not in themselves establish the offense of indecent exposure. This would seem to be particularly true where the acts complained of take place within the privacy of a lodging removed from public places and where observation thereof is to some extent an invasion of the rights of privacy ordinarily attached to a home, whether it be a dwelling house or a room in a college dormitory.
As stated in 33 Am. Jur., Lewdness, Indecency and Obscenity, § 7: ...
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