(concurring specially).
It should be emphasized that the only evidence in the record to sustain the conviction was the testimony of Mrs. Norris concerning 'her observance of the accused who motioned to her while he was naked and standing near the small door in the back of the garage while she was hanging some clothes on a line. This conviction would not be sustained on the testimony of what Mrs. Norris and some of the neighbors who had gathered in her house observed while they were peering through some organdy curtains in the kitchen and saw the defendant through a door two and one-half feet wide lying naked on the floor of the garage. This garage was estimated to be 50 to 70 yards from the kitchen window, the accused apparently had no knowledge that he was being observed and furthermore I.cannot conclude that they were annoyed at what they saw. After Mrs. Norris went into her house, she gathered the neighbors so that they could all be “annoyed.” According to the testimony of these witnesses they watched the accused intently as he lay according to them, “as if taking a sun bath” and they were so “annoyed” ‘by what they had seen that they continued to take turns at the window and look at him for a period estimated to be from 15 to 30 minutes. It seemed more like family night at the circus with everybody clamoring to get into the sideshow to see the freak.
Under the statute, before the defendant could be convicted, one of two things must occur. First, the exposure of his person must be ‘in a public place. Second, if not in a public place, there must be 'Other persons present who are offended or annoyed by the exposure.
In the instant case there is no contention that the accused exposed himself in a public place and in order for the conviction to be sustained, it must be on the theory that the exposure of his person was at a place where there were other persons present who were offended or annoyed thereby.
Because there might be a possible misinterpretation of the opinion of the court, I take this means to emphasize that the act of the accused in the instant case of lying on the floor of his enclosed garage' while nude was extremely unconventional and might even be classified as indecent or reprehensible, but it certainly was not a crime within the meaning of the act here involved for two reasons. First, it was not in the presence of other people as contemplated by the act, and secondly, the parties who saw the exhibition were evidently not annoyed nor offended. According to Webster “offend” means to cause dislike, anger or vexation and “annoy” means to vex or irritate. I cannot believe that a person who is very much annoyed or offended would continue to look at something that was annoying her for a period from 15 to 30 minutes where she was not compelled to witness such an alleged exhibition.
The accused, who offered substantial evidence of credible witnesses to prove an alibi, was a young war veteran who had served 2 years in the army, had 4 children, a degree in engineering and an excellent job. He had lived an exemplary life until this purported occurrence. No one allegedly saw him masturbating except the witness Norris. According to the other witnesses he was lying on the cold concrete floor, blissfully unaware that he was the object of so much concentrated attention. If the trial court had not suspended the execution of the sentence, I would have favored a modification of the judgment.
I am authorized to state that POWELL, J., concurs in the views I have' herein expressed,