State v. Peacock

163 So. 2d 46, 1964 Fla. App. LEXIS 4706

• Court: District Court of Appeal of Florida
• Decided: April 17, 1964
• Docket: No. 4485
• Status: Published

Opinion

BARNS, PAUL D., Associate Judge.

This is an appeal by the State from an order quashing an information on motion of the respondent on the ground- that the information did not state facts which constitute a felony.- We find error and reverse.

The information charges that the appellee “did knowingly commit a lewd and lascivious act in the presence of” two named male children “under the age of fourteen years, by willfully and knowingly exposing the penis of Curtis Henry Peacock to the view of the said” two children which act was “lewd and lascivious.”

Section 800.04 Florida Statutes (1963) F.S.A., provides:

“Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd-or lascivious act ■in the presence of such child, without intent to commit rape where such child is female, shall be deemed guilty of a felony and punished by imprisonment in the state prison or county jail for not more than ten years.” (Emphasis supplied.)

It appears that the information charges acts within language of the statute above quoted since it is comprehensible that the exposure of the penis-could have been in a lewd and lascivious manner; the attitude, manner and demeanor of the accused may have made the exposure “lewd and lascivious.”

Since a violation of Section 800.04 (supra) is punishable in the state prison upon conviction the information charges a felony. See F.S. Section 775.08, F.S.A.

Reversed.

SHANNON, Acting C. J., and WHITE, J., concur.