State v. Nelson D. Peery

Supreme Court of Minnesota

224 Minn. 346; 28 N.W.2d 851; 1947 Minn. LEXIS 541

July 18, 1947

JUDGES: Thomas Gallagher, Justice. Peterson, Justice (dissenting).

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.

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 ground-floor 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 passers-by 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 Macalester 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:

"There was no testimony by any of the witnesses either for the Prosecution or the Defense that defendant had waved or signaled to any of the girl witnesses for the Prosecution who claimed to have seen any of the exposures, or that he had in any way attempted to attract their [***9] attention or that he had called to or whistled at them or made any sound or done anything else calculated to attract their attention or the attention of anyone; other than the facts hereinbefore specifically recited.

"There was no testimony by any of the witnesses that defendant had committed any lewd or indecent acts other than the claimed exposures."

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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:

"A mere accidental exposure of the person will not amount to the crime of indecent exposure, but it must appear that the exposure was intentional, at such time and place and in such manner as to offend against public decency. The intent, however, may be inferred from the manner of the exposure . . . . .."

1. To establish intent where the act does not occur in a public place or otherwise where it is certain to be observed, some evidence further than the act itself must be presented. Ordinarily, intent is established by evidence of motions, signals, sounds, or other actions by the accused designed to attract attention to his exposed condition, or by his display in a place so public and open that it must be reasonably presumed that it was intended to be witnessed. This rule is well expressed in Miller v. People (1849) 5 Barb. (N.Y.) 203, 204:

"* * * But two or three persons were so unfortunate as to have observed the conduct complained of [in the rear of the defendants' home, surrounded by a five-foot fence]; and there was no satisfactory evidence to show that the defendants supposed they were seen by any body, or that they intended to expose their persons to the public view. * * *

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3. In the instant case, we are far from satisfied that the evidence is sufficient to sustain the trial court's finding that defendant's conduct was wilful and lewd rather than the result of carelessness or thoughtlessness. Defendant has denied the intent. He is a man without a previous blemish against his record. He is a combat veteran of four major campaigns of the South Pacific, honorably discharged as a staff sergeant, seeking a college education, and working part time to help defray his expenses. He concedes that on occasions he may have been careless. His room is small and fairly close to the sidewalk. His ordinary activity therein at about the times in question, when it was his custom to remove his clothing preparatory to bathing, might easily be misinterpreted by passers-by looking into his room.

There is no evidence whatsoever that he endeavored to attract the attention of passers-by by motioning, signaling, or calling to them, unless his act of raising the shade on one occasion might be thus regarded. This would seem rather flimsy evidence upon which to convict a man of the charge specified and to forever blemish his name and character as a result.

The testimony of Dr. Hugo Thompson, professor of Religion and Philosophy at Macalester College, characterizes defendant as a man of good reputation and high standing in the seminar. All the testimony in the case is consistent with defendant's testimony that he may have been careless or heedless, but that he did not intentionally expose himself. In our opinion, the evidence as submitted is insufficient to sustain a finding that defendant wilfully and intentionally indecently exposed himself in violation of either the ordinance or the statute above designated.

Reversed with directions to enter judgment discharging defendant.