
    44838.
    McNABB v. THE STATE.
   Eberhardt, Judge.

Defendant was convicted under an accusation charging that he did on May 9, 1969, commit an act of public indecency, or open lewdness, consisting of the exposure of his private parts in a public place where he might have been seen by many persons, and where he in fact was seen by a named woman.

The proof consisted of testimony from the woman that she saw him on May 9, 1969, standing alongside a truck on Highway No. 143 in Walker County zipping up his pants with one hand and waving to her with the other. He did not have his private parts exposed and she did not see them. Two other women testified concerning separate occasions prior to May 9, 1969, one of them testifying that she saw the defendant standing alongside a truck on Highway 143 with his pants open and his private parts exposed, motioning to her to stop, and the other testifying relative to a time when he waved to her to stop and she, thinking that he was asking for help, stopped and he came up to her car stating “I want to show you something,” and exposed his open pants with his private parts out.

From the conviction and sentence defendant appeals. Held:

The evidence as to the occasion on May 9, 1969, falls short of proving a commission of the crime for which the defendant was prosecuted. Even if he might have been convicted for his action on either of the other occasions had the State shown that the occasion was within two years prior to the filing of the accusation (Cook v. State, 33 Ga. App. 571 (127 SE 156); Daniel v. State, 59 Ga. App. 884 (2) (2 SE2d 519)), there is a failure to prove anything more than that these occasions were “prior to May 9, 1969.” For aught that appears they may have been more than two years prior to that date, in which event prosecution for them would be barred by the statute of limitation. Code § 27-601 (4). To justify a conviction the State must prove the commission of an offense which is not so barred. Levan v. State, 125 Ga. 278 (54 SE 173); White v. State, 9 Ga. App. 558 (71 SE 879).

Argued October 6, 1969

Decided October 31, 1969.

Pittman & Kinney, Maurice M. Sponder, Jr., Donald G. Loggins, for appellant.

Judgment reversed.

Bell,'C. J., and Deen, J., concur.  