Because I think that the evidence was sufficient to justify a finding of intentional indecent exposure, I dissent.
There is no dispute concerning certain facts such as those that defendant was nude in the room in question under such circumstances as to be visible through the windows to casual passers-by on the sidewalk outside; that the room is on the first floor at the northwest corner of the building; that there is a window on the north side opening onto the street lying to the north; that there is a window on the west side opening onto the sidewalk; that the bottom sills of the windows are only knee-high from the floor; that if a man stood nude in front of a window his private parts would be exposed to public view; and that girls employed in the vicinity passed on the sidewalk outside the window in going to and from their work.
The offense is alleged to have been committed on August 13. Five girls, who were in no way discredited or impeached, testified that on three separate occasions defendant stood nude in front of the window so as to be plainly visible to them. The exposure on the 13th *Page 355 was the third such exhibition. On August 8 defendant looked out the north window as two of the girls approached, and then as they were passing on the west side on the sidewalk he raised the window shade and stood nude in the open window. On August 12 he stood nude in the west window.
Defendant told an unsatisfactory and contradictory story. His defense was not an unequivocal denial of the version given by the girls, but an argumentative one, which he attempted to buttress by an explanation that did not hold water. He did not unequivocally deny that he stood naked in the west window. He said that he "could" not have done so, because he had a standing to maintain with his "classmates," and because, if he were nude in the room, they "could certainly observe" him, and thereby his standing would be destroyed. There was no denial of what occurred on the 8th, as testified to by the girls, to the effect that after defendant looked out the north window he stepped to the west window and raised the shade. He denied any intention to expose his person to anyone, but stated that "he might have overlooked drawing the shades of the two windows north and west in his room," and denied knowledge of the fact that the girls passed his windows on the dates mentioned. In effect, he admitted on cross-examination that persons in the other buildings could see into his room and stated that because of that fact he had been careful. On direct examination he testified that he was nude each day at the time the girls passed, because he then undressed to change clothes for the purpose of going to another room to take a shower bath after his day's work. On cross-examination he stated that he did not work on August 12 and did not take a shower bath that evening, "as he was not dirty." Thereby, his explanation that he went nude in his room as an incident to his bathing was contradicted — he was nude on an occasion when he did no bathing.
The trial judge certified (1) that the evidence showed the foregoing facts; (2) that there was no testimony that defendant had waved, signaled, called, or done anything to attract attention "other than the facts hereinbefore specifically recited" (italics supplied); *Page 356 and (3) that there was no testimony that defendant had committed any lewd or indecent acts "other than the claimed exposures" (italics supplied). It is obvious, therefore, that the judge simply meant to certify that defendant had committed the lewd and indecent acts which have been stated, and no others. The question for decision emerging here from those facts is whether they constitute a basis for finding the commission of intentional indecent exposure.
1. The applicable rule of law is correctly stated in the majority opinion, but it is misapplied. The rule is of course that indecent exposure consists of an intentional, not accidental, exposure of the person at a time and place and in such manner as to offend against public decency, and that the intent may be inferred from the manner of the exposure or recklessness. Exposure of one's private parts in a place where it is likely to be seen by a number of casual observers, as, for example, in a store to which the public is invited for purposes of trading and the interior of which may be readily seen by people passing on the street, constitutes indecent exposure; and where the evidence shows only such facts it supports a finding that the exposure was intentional. Van Houten v. State, 46 N.J.L. 16, 50 Am. R. 397; Annotation, 93 A.L.R. 1000; 33 Am. Jur., Lewdness, Indecency and Obscenity, § 7. The exposure here is not different from that in the Van Houten case, and the same rules of law should be applied here as there. In Commonwealth v. Bishop, 296 Mass. 459, 6 N.E.2d 369, defendant's conviction was sustained where it appeared that he exposed his nude person in his room under such circumstances that he could be seen by people living in a house to the rear of the one in which he lived. Pertinent cases are discussed in Commonwealth v. Broadland, 315 Mass. 20,51 N.E.2d 961, and Annotation, 93 A.L.R. 996.2
The early law was not very tender of a defendant who indecently exposed himself to a female and declared that in such cases the *Page 357 offender may be treated as a "rogue and vagabond." 2 Chitty's Blackstone, Book IV, p. 64, note 25.
Here, in addition to the inferences to be drawn from the established facts that the exposure occurred where it was likely to be seen by persons passing on the outside and that defendant himself admitted this to be the fact, the evidence that defendant committed the same offense on prior occasions and that on one of them — August 8 — he attracted the attention of two of the girls by raising the shade in front of the west window as they passed it after he had observed through the north window that the girls were approaching from that direction and would pass the west window shows not only that that particular exposure was an intentional and calculated one, but that all the exposures were intentional and not accidental. Perkins v. Jeffery [1915] 2 K. B. 702. There, the court applied the rule in cases of this kind, which we have reiterated in the numerous cases collected in 2 Dunnell, Dig. Supp. § 2459, that the commission of the same offense on prior occasions negatives that the particular offense charged was unintentional or accidental.
The cases cited by the majority are plainly distinguishable. To begin with, none of them involves a situation where the defendant stood nude in front of a window the sill of which was only knee-high and where his nudity could be plainly seen by persons outside. Furthermore, in none of them did it appear, as it does here, that the defendant had previously intentionally committed the same offense. With some exceptions, to which I shall specifically refer, they involve entirely different situations, such as an exposure in the presence of only one person, and the question was whether such an exposure constituted a "notorious" public exposure; exposures intended not to be seen at all, such as one seen only by window peeping and one seen through a side window through which persons ordinarily had no view; exposure in a place not a public one, such as unintentional exposure incident to taking a bath in a livery stable; and purely accidental exposures. The rules laid down in some of them would compel affirmance here. *Page 358
The case of Morris v. State, 109 Ga. 351, 34 S.E. 577, turned on whether commission of the offense before one person constituted "notorious" public indecent exposure, and the court held that it did not. Here, the offense was committed before several persons. It is submitted that the rule laid down in the Morris case is unsound. See, State v. Berg, 171 Minn. 513,213 N.W. 46; Commonwealth v. Bishop, 296 Mass. 459,6 N.E.2d 369; Annotation, 93 A.L.R. 1007.
Rachel v. State, 71 Okla. Crim. 33, 107 P.2d 813, involved a situation where exposure incident to fornication committed in a room with the shades drawn was observed by window peeping by persons whose presence was unknown to those engaged in the indecent exposure. Obviously, there was no intentional exposure there.
In McKinley v. State, 33 Okla. Crim. 434, 244 P. 208, there was no evidence to show that defendant knew or had reason to know that his standing nude in a bathroom while shaving could be observed by persons outside. Here, according to defendant's own testimony, he knew that his being nude in his room "could certainly" be seen by others.
In Wainscott v. State, 89 Ind. App. 452, 166 N.E. 666, the observation was made by going round to a side of the house to look through a window not open to public view.
Taylor v. State, 65 Tex. Cr. 469, 145 S.W. 599, simply involved the question whether the livery stable in which defendant took a bath was a public place.
Miller v. People, 5 Barb. (N.Y.) 203, holds that intent may not be inferred from the act of exposure itself, even though the exposure might be observed by others. This case is contrary to the weight of authority and has been criticized as unsound. 2 Wharton, Criminal Law (12 ed.) § 1750, note 9. Plain common sense should deter us from following it.
In People v. Ulman, 258 A.D. 262, 16 N.Y. So.2d 222, the facts are not stated. The rules there announced would support a conviction here. *Page 359
State v. Martin, 125 Iowa 715, 718, 101 N.W. 637, 638, fully supports the conviction here. There, the exposure was committed in the presence of one female. The quotation from this case in the majority opinion shows that under well-settled rules defendant's conviction here should be sustained, because defendant's exposure occurred at a time and place and under such circumstances that he, as a reasonable person, should have known that his act would be observed by others. As the court there said:
"* * * The exposure becomes 'indecent' * * * when he indulgesin such practices at a time and place where, as a reasonableperson, he knows, or ought to know, his act is open to theobservation of others." (Italics supplied.)
2. Evidence of defendant's good character was a fact to be considered by the trial judge in determining whether he was guilty or innocent. Good character is not a defense as a matter of law. State v. Sweeney, 180 Minn. 450, 231 N.W. 225,73 A.L.R. 380; State v. Tuomi, 167 Minn. 74, 208 N.W. 528; State v. Dolliver, 154 Minn. 297, 191 N.W. 594; Id. 150 Minn. 155,184 N.W. 848; Hermansky v. United States (8 Cir.)7 F.2d 458; 2 Dunnell, Dig. Supp. § 2458; Annotation, 10 A.L.R. 10; 22 C.J.S., Criminal Law, §§ 53, 678, 679; 15 Am. Jur., Criminal Law, § 313.
The rule is so stated in People v. Ulman, 258 A.D. 262,16 N.Y. So.2d 222, supra, an indecent exposure case; but, because the facts there were not stated the case is of no particular value as showing the application of the rule in a particular fact situation.
In State v. Sauer, 38 Minn. 438, 440, 38 N.W. 355, 356, Mr. Justice Mitchell explains the importance of good character of the defendant in a criminal case and explains its role in a case as follows:
"* * * Evidence of good character is admissible to support the original presumption of innocence, and is to go to the jury, and be considered by them, in connection with all the other evidence in the case. If they are satisfied of his guilt beyond a reasonable doubt, they must find him guilty, notwithstanding his previous good character; on the other hand, if, after considering all the evidence, (that *Page 360 of good character included,) they have a reasonable doubt, they must acquit. Good character is a fact varying greatly in its value, according to the proofs to which it is opposed. Cases may be made out so strong that no proof of character can make them doubtful; while in others the evidence against a person might be such that evidence of good character would produce a reasonable doubt of his guilt. Good character, when proved, is a fact in the case that may tend, in a greater or less degree, to establish innocence; and it is not to be put to one side by the jury in order first to ascertain whether the other evidence, considered by itself, does not establish guilt beyond a reasonable doubt."
Here, the evidence showing the commission of the offense was in no way met or overcome. Defendant's explanations did not fully explain his conduct. The case simply amounted to one where a man previously known as having good character was proved guilty of an intentional indecent act. Under such circumstances, evidence of good character loses the force it might have in a doubtful case.
The majority holding simply amounts to saying that it is lawful for a man to stand nude in front of a window knowing that passers-by will see him. I cannot subscribe to such a doctrine, because I think it is not the law.
2 Truett v. State, 3 Ala. App. 114, 57 So. 512; People v. DeVine, 271 Mich. 635, 261 N.W. 101; People v. Kratz, 230 Mich. 334,203 N.W. 114; State v. Goldstein, 72 N.J.L. 336,62 A. 1006; Moffit v. State, 43 Tex. 346; Reg. v. Wellard [1884] 14 Q. B. 63; Reg. v. Thallman [1863] 9 Cox C. C. 388. *Page 361