Wicks v. City of Charlottesville

Citation208 S.E.2d 752, 215 Va. 274
Case DateOctober 14, 1974
CourtSupreme Court of Virginia

Page 752

208 S.E.2d 752
215 Va. 274
Jessie N. WICKS
v.
CITY OF CHARLOTTESVILLE.
Supreme Court of Virginia.
Oct. 14, 1974.

Page 753

F. Guthrie Gordon, III, Charlottesville (Lowe & Gordon, Charlottesville, on brief), for plaintiff in error.

Richard H. Barrick, Commonwealth's Atty., for the City of Charlottesville, for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARRISON, Justice.

Involved here is § 19--44 of the City Code of Charlottesville which provides:

'No person shall indecently expose himself, or do any obscene act, or write obscene

Page 754

language, or make obscene marks or drawing on any wall, fence or other thing, or address any [215 Va. 275] obscene, lewd or profane languge or words to another, or make use of such language within the hearing of another.'

Jessie N. Wicks was arrested, charged and convicted of unlawfully having exposed himself indecently in public, in the City of Charlottesville on October 14, 1973, in violation of the above ordinance. Defendant's punishment was fixed at a fine of $15, and costs, and he appealed the order of conviction.

The evidence clearly established that Wicks, in daylight, on a Sunday afternoon, intentionally exposed himself and urinated on a public street in the presence of others. 1 This constituted an act of gross and open indecency, injurious to public morals and indictable at common law. The defendant gave no explanation or reason for his actions, and there is no suggestion that he was acting In extremis. In Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d 241, 243 (1952), Mr. Justice Eggleston, later Chief Justice, made an exhaustive examination of the authorities defining common law obscenity and in his opinion said:

'In 67 C.J.S. Obscenity § 5, p. 25, the author says: 'Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law, and is made an offense by a number of statutes and ordinances. * * *' The text is fully supported by the cited cases. (Citing authorities.)

'Ordinarily, although not necessarily, the place where the exposure is made must be public. Indecent exposure on a street or public highway 'so that one person sees, and others [215 Va. 276] passing by can see, is an offense' at common law. 67 C.J.S. Obscenity § 5, p. 26.'

The evidence amply supports the finding of the lower court that the defendant violated so much of Charlottesville City Code § 19--44 as provides '(n)o person shall indecently expose himself, . . .' 'Indecent exposure' is defined in Webster's Third New International Dictionary 1147 (1966), as: '( I)ntentional exposure of part of one's body (as the genitals) in a place where such exposure is likely to be an offense against the generally accepted standards of decency in a community'. In Black's Law Dictionary 909 (4th ed. 1951), 'indecent exposure' is defined as: 'Exposure to sight of the private parts of the body in a lewd or indecent manner in a public place. It is an indictable offense at common law, and by statute in many of the states. . . .'

As was observed in Noblett v. Commonwealth, Supra, '(a)n intentional exposure on a public street where it is likely to be seen by casual observers, whether actually seen by a single person or by several, is an act of 'gross and open indecency, injurious

Page 755

to public morals". 194 Va. at 246, 72 S.E.2d at 244. 2 We construe the first six words of Charlottesville City Code § 19--44 as contemplating an intentional and indecent exposure in a public place where it is likely to be seen, whether actually seen by one or several persons.

Such construction is consistent with the common law, and we have held that 'the best construction of the statute is, to construe it as near to the reason of the common law as may be, . . .' Chichester v. Vass, 5 Va. (1 Call) 83, 102 (1797). The reason is that the Legislature is presumed to have known and to have had the common law in mind in the enactment of a statute. The statute must therefore be read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.

The term 'indecent exposure' had a precise, well defined meaning at common law, and the Charlottesville ordinance [215 Va. 277] under review specifically uses the language 'indecently exposed', thereby giving the offense its common law name. We therefore conclude that so much of the ordinance as prohibits what is a common law offense, 'indecent exposure', is not vague, overbroad, or otherwise invalid as applied to the conduct charged against Wicks.

Charlottesville City Code § 1--3 provides that each portion of the City Code is severable for purposes of constitutional analysis. Therefore so much of the ordinance as describes the common law offense of indecent exposure can be and is severed from the rest of the ordinance which may be subject to valid objections.

The purpose of a saving provision in a statute or ordinance, declaring that the unconstitutionality of parts shall not...

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39 practice notes
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...common law." Moses v. Commonwealth, 45 Va.App. 357, 361 n. 2, 611 S.E.2d 607, 609 n. 2 (2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)); see also Washington v. Commonwealth, 46 Va. App. 276, 281, 616 S.E.2d 774, 777 (2005) (en banc). The comm......
  • Smith v. West Virginia State Bd. of Educ., No. 15454
    • United States
    • Supreme Court of West Virginia
    • June 22, 1982
    ...it clearly appears from the statute that the purpose of the statute was to change the common law. E.g., Wicks v. City of Charlottesville, 215 Va. 274, 208 S.E.2d 752 (1974); cf. Coal & Coke Ry. Co. v. Conley, 67 W.Va. 129, 67 S.E. 613 (1910); 6 2A Page 685 Sands, Sutterland Statutory Constr......
  • Farish for Farish v. Courion Industries, Inc., Nos. 82-1964
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 22, 1985
    ...construed and not to be enlarged in their operation by construction beyond their express terms. Cf. Wicks v. City of Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 Furthermore there was in Whalen legislative history strongly mandating against the result which the technique would hav......
  • Washington v. Com., Record No. 1734-03-4.
    • United States
    • Virginia Supreme Court of Virginia
    • August 9, 2005
    ...common law." Moses v. Commonwealth, 45 Va.App. 357, 361 n. 2, 611 S.E.2d 607, 609 n. 2 (2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)). Along similar lines, we "assume legislative familiarity with Virginia case law when the legislature enact......
  • Request a trial to view additional results
39 cases
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...common law." Moses v. Commonwealth, 45 Va.App. 357, 361 n. 2, 611 S.E.2d 607, 609 n. 2 (2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)); see also Washington v. Commonwealth, 46 Va. App. 276, 281, 616 S.E.2d 774, 777 (2005) (en banc). The comm......
  • Smith v. West Virginia State Bd. of Educ., No. 15454
    • United States
    • Supreme Court of West Virginia
    • June 22, 1982
    ...it clearly appears from the statute that the purpose of the statute was to change the common law. E.g., Wicks v. City of Charlottesville, 215 Va. 274, 208 S.E.2d 752 (1974); cf. Coal & Coke Ry. Co. v. Conley, 67 W.Va. 129, 67 S.E. 613 (1910); 6 2A Page 685 Sands, Sutterland Statutory Constr......
  • Farish for Farish v. Courion Industries, Inc., Nos. 82-1964
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 22, 1985
    ...construed and not to be enlarged in their operation by construction beyond their express terms. Cf. Wicks v. City of Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 Furthermore there was in Whalen legislative history strongly mandating against the result which the technique would hav......
  • Washington v. Com., Record No. 1734-03-4.
    • United States
    • Virginia Supreme Court of Virginia
    • August 9, 2005
    ...common law." Moses v. Commonwealth, 45 Va.App. 357, 361 n. 2, 611 S.E.2d 607, 609 n. 2 (2005) (en banc) (quoting Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)). Along similar lines, we "assume legislative familiarity with Virginia case law when the legislature enact......
  • Request a trial to view additional results

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