Tucker v. State , 28 Tex. Ct. App. 541 ( 1890 )

Willson, Judge.

It is charged in the indictment that the defendant “ did unlawfully and designedly, in public, make an obscene and indecent exhibition of the persons of others,” etc. This charge is not sustained by the evidence. By the terms “obscene and indecent exhibition of the person,” as used in article 343 of the Penal Code, is meant, we think, an exposure of those parts of the person which are commonly considered as private, and which custom and decency require should be covered and kept concealed from public sight. They do not mean or include obscene or indecent print, picture, or written composition placed upon the clothes worn upon the person. In this case the evidence shows that the defendant was perhaps guilty of placing an obscene and indecent writing upon the clothes worn by other persons, and thereby committed the offense denounced in said article 343, but not in the manner charged in the indictment. If the facts constituting the offense had been properly charged in the indictment we think the evidence would sustain the conviction, but as now presented the allegation and the proof do not correspond (Coker v. The State, 24 Texas Ct. App., 1), and therefore the judgment is reversed and the cause is remanded.

Reversed and remanded.

Judges all present and concurring.