Breeding v. Commonwealth

213 Va. 344 (1972)

JOHN PURNELL BREEDING v. COMMONWEALTH OF VIRGINIA.

Record No. 8041.

Supreme Court of Virginia.

November 27, 1972.

Present, Snead, C.J., Carrico, Harrison, Cochran, Harman and Poff, JJ.

Since evidence of Commonwealth is insufficient to prove lascivious intent required under statute, conviction cannot be upheld.

Error to a judgment of the Circuit Court of the City of Chesapeake. Hon. Major M. Hillard, judge presiding.

James M. Pickrell; Albert L. Fary, Jr. (Kellam, Pickrell and Lawler, on brief), for plaintiff in error.

Gilbert W. Haith, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.

Per Curiam.

Defendant, John Purnell Breeding, was charged in two indictments with exposing his genital parts "with lascivious intent" to two children under the age of fourteen years, in violation of | 18.1-214, Code of 1950, as amended. He was tried by the court without a jury and sentenced to three years in the State Penitentiary on each indictment, with the sentences to run concurrently. We granted writs of error to the judgments.

The evidence shows that on the afternoon of June 24, 1970, two girls, 8 and 10 years old, respectively, were playing on Arbutus Circle in the City of Chesapeake. A car driven by the defendant stopped and he asked them the way to Daniel's Pharmacy. When the girls approched the car they noticed that defendant's trousers were unbuckled and unzipped, and they saw what they referred to as his "privacy." The defendant made no suggestive remarks or gestures *345 and there was no evidence that he was sexually aroused. After obtaining the information sought, defendant went on his way.

The evidence of the Commonwealth is insufficient to prove the lascivious intent required under the statute, and the convictions cannot be upheld. McKeon Commonwealth, 211 Va. 24, 26-27, 175 S.E.2d 282, 284 (1970).

The judgments are reversed and set aside and the cases are remanded to the court below for a new trial if the Commonwealth be so advised.

Reversed and remanded.