Opinion
No. 4685.
Submitted January 6, 1959.
Decided January 30, 1959.
1. The offense of indecent exposure (RSA 570:6) is separate from that of lascivious behavior (RSA 579:3) and such exposure is not a required element of the latter offense.
2. Gross lewdness and lascivious behavior is an offense against chastity calculated to arouse or appeal to or gratify passions and sexual desires on the part of the offender and consists of lustful behavior going beyond indecency; the offense of indecent exposure need only offend against order and decency.
COMPLAINT, charging a violation of RSA 579:3 as follows: that the respondent "was guilty of lascivious behavior, in that he did molest . . . a female child ten years of age . . . by suggesting to her that he be allowed to play with her, sexually, and in that he did then and there place his hands upon her breast and private parts . . . ."
The transferred case relates that there was evidence to justify a finding that the respondent inquired of the child, in a store where he was employed, if she would "like to earn a quarter," and upon receiving an affirmative answer approached her from behind and without disarranging her clothes touched the parts of her body described in the complaint; that she thereafter moved away and as she left the store was given a ten-cent piece by the respondent, "for not telling her mother"; and that there was no evidence that the respondent indecently exposed any part of his person or of the child's.
At the close of the State's evidence the respondent moved to dismiss the complaint upon the ground that as a matter of law he could not be convicted in the absence of evidence of indecent exposure. The motion was denied subject to exception, and in advance of further proceedings the question of law presented by the exception was transferred pursuant to RSA 502:24 by Dresser, justice of the Greenville municipal court.
Louis C. Wyman, Attorney General, Elmer T. Bourque, Assistant Attorney General, and Conrad Danais, county attorney, for the State.
William D. Tribble and Walter H. Gentsch for the respondent.
RSA 579:3 provides in part: "If any person shall be guilty of gross lewdness or lascivious behavior such person shall be imprisoned not more than six months or fined not more than two hundred dollars, or both . . . ." The nature of the offense with which the respondent is charged was recently considered and defined in State v. Smith, 98 N.H. 149. "The gist of the offense is lustful conduct, tending by its probable disclosure and shamefulness to debase the standard of public morals." Id., 150. It is an offense "against chastity" (RSA ch. 579, supra), consisting of behavior which goes beyond indecency (see State v. Hummer, 128 Iowa 505, 508) and is calculated to arouse, appeal to, or gratify lustful passions and sexual desires on the part of the offender. State v. Kocher, 112 Mont. 511. See also, State v. Johnson, 74 Idaho 269, 275; Zeiner v. Zeiner, 120 Conn. 161, 166. It is not essential that the offense be publicly committed. State v. Smith, supra, 150.
The offense of "indecent exposure" is a separate offense which need only offend "against order and decency." RSA 570:6. However, it may be committed under circumstances which would also warrant conviction of lascivious behavior. State v. Burgess, 77 N.H. 170; Faulkner v. State, 146 Fla. 769. See Laws 1925, c. 40, s. 1.
It does not follow that conviction of the latter offense requires proof of indecent exposure. The conduct of which there was evidence before the municipal court could be found to have been lustful and intended to gratify sexual desire, even though it did not extend to exposure of the person. State v. Kocher, supra. Although evidence of exposure might have further enforced the conclusion, its absence did not. preclude it.
In short, indecent exposure is not an element of the offense with which this respondent is charged; his motion is not well founded, and it was properly denied.
Remanded.
All concurred.