The court rejected a conviction of assault against a 24 year old Maryland man accused by a vice squadder of "taking an indecent liberty" in the men's room of a hotel.

Chief Judge Nathan Cayton handed down the opinion that reversed the lower court decision of guilt. Judge Thomas D. Quinn and Andrew M. Hood were in agreement with Judge Cayton who pointed out that the court had previously found that "a man who takes improper liberties with the person of another man without his consent is guilty of assault.' But in this case, the Judge stated, "the question is whether his conduct (the policeman's) was so responsive toward the defendant's overture as to indicate

consent.

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Judge Cayton asserted that the policeman's duty is to prevent, not punish, crime and he cannot incite or create it and himself remain within legal limits.

The Judge went on to note that "it is a misdemeanor for a policeman to fail to

arrest for an offense committed in his presence."

"Altho he said the conversation did not involve sex, the defendant might reason-

JUDGE REBUKES OFFICER IN MORALS CASE REVERSAL

ably have believed that Klopfer not only was not shocked by what he saw but was interested in developing their acquaintance further and that for that purpose Klopfer took the seven-block stroll with him," Judge Cayton wrote. WRONG CHARGE

He said the evidence probably would have supported charges of soliciting for immoral or lewd purposes. But it doesn't support charges of assault.

"Courts are not so uninformed as not

to be aware that there are such things as flirtations between man and man,'

Judge Cayton said.

"And when flirtation is encouraged and mutual, and leads to a not unexpected intimacy or an intimacy not discouraged or repelled, such cannot be classified as an assault. Even more strongly should the rule apply when the complaining witness is a policeman.

Judge Cayton said he agreed with the Evan T. Davis, that police should not be defense attorneys, Edward T. Kehoe and permitted to "torment and tease weak men beyond their power to resist."

The above story was printed in the Washington Daily News and the headline in the Washington Post, 15 July '53.

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