Stark v. State

81 Miss. 397

• Court: Mississippi Supreme Court
• Decided: October 15, 1902
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

The indictment was drawn under code, § 1218, against the exposure of the person in a public place, etc. The statute requires the exhibition to be “willfully and lewdly” made. Thé indictment charges that it was ‘£ unlawfully and willfully ’ ’ made, omitting the word £ £ lewdly. ’ ’ If this may be left out, so may the wore) £ £ willfully, ” by the same process of reasoning, leaving the whole charge to depend on the word £ £ unlawfully.” We hold, therefore, that the indictment is void on its face. The statute does not use the word £ £ unlawfully. ’ ’ The pleader very properly did, but he failed to use a word essential to the description of the offense, so as to support the pleader’s conclusion that the act was unlawful. Cook v. State, 72 Miss., 517 (17 South., 228); Dee v. Same, 68 Miss., 601 (9 South., 356); Lewis v. Same, 49 Miss., 354; Harrington v. Same, 54 Miss., 490; Roberts v. Same, 55 Miss., 421; and the other cases cited in Brame & A. Dig., p. 305, secs. 93-99, and those in George’s Dig., p. 814, secs. 305-312. The exposure may be willful, because sometimes inescapably necessary, and yet not at all lewd ; and this is of the very essence of the offense, and therefore must be charged. Hodnett v. State, 66 Miss., 27 (5 South., 518). For the same, and even stronger, reason, we think there was error in granting the only instruction asked for by the state. This charge tells the jury that, if satisfied beyond a reasonable doubt, (‘ that the defendant willfully and lewdly exposed” his person or did a specified act in a public place, etc., they should convict. So, if he did the particular act, whether he did it unlawfully, willfully, or lewdly, or not, according to this charge, he was guilty.

Even if defendant had been properly indicted and convicted under' proper instruction, the statute limits the judgment of imprisonment to twenty days, and the court was without power to sentence him for thirty days, as it did.

Reversed and remanded.