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Desecration of the Sabbath-Profanity.

market occasioned by danger of the closing of navigation, is not a work of necessity. 30 Ind. 476.

Liquor law.-Information charging that "A., at, etc., being over fourteen years of age, on, etc., that being the first day of the week, commonly called Sunday, was found unlawfully at common labor and engaged in his usual avocation, to wit, selling and dealing out to B. two gills of whisky, and receiving therefor twenty cents," etc. Held, that as it did not appear from the information whether or not the defendant had a license, it was bad, on a motion in arrest based upon the ground that it did not state facts sufficient to constitute a public offense. 31 Ind. 64.

Quære. Whether an information for desecration of the Sabbath is good, which charges the unlawful selling of "two cigars," and does not charge that it was done in the usual avocation of the defendant. 18 Ind. 416, criticised; 33 Ind. 203.

Gaming.-Gaming is not an act of common labor or usual avocation, within the prohibition of the Sunday law. 14 Ind. 396. 11 Ind. 311.

Where the act which is a desecration of the Sabbath is also another offense, the defendant may be prosecuted for either. 11 Ind. 311.

The making of a promissory note on Sunday is common labor. 4 Ind. 619. See 13 Ind. 205.

See, on this subject, 2 Bish. Crim. Law, §§ 936-944.

Evidence-Reasonable doubt.-If, on the trial of an indictment for desecrating the Sabbath by selling an article, there is a reasonable doubt as to whether the transaction was a sale or a gift, there can be no conviction. 33 Ind. 203. See 15 Ind. 453.

Evidence-Variance.-An indictment for desecrating the Sabbath charged, that the defendant "was found unlawfully at commen labor and engaged in his usual avocation, to wit, then and there selling and delivering to William Dillon one cigar, and receiving from him ten cents in payment therefor," etc. Held, that the indictment alleged, substantially, that selling cigars was the defendant's usual avocation. Held, also, that evidence that making and selling cigars was the defendant's business, was admissible. Held, also, that proof that the sale charged was made to William P. Dillon, was not a material variance. 33 Ind. 215.

Same-Opinion of witness.—On the trial of an indictment for desecrating the Sabbath, a witness stated, as his own opinion merely, that the defendant was over fourteen years of age, and testified that

Desecration of the Sabbath-Profanity.

the defendant was keeping house, living with a woman as his wife, whom the witness supposed to be the defendant's wife; that they lived together as husband and wife; and that the defendant had a moustache. Held, that this evidence was sufficient to justify a finding that the defendant was at least fourteen years of age. Ibid.

Evidence as to age. In a trial for violation of the Sabbath, the indictment, among other averments, charged that the defendant was over the age of fourteen years. Held, that the age of the accused must be proven by sworn testimony, and that the court or jury could not determine this fact for themselves from the personal appearance of the accused alone. 28 Ind. 272.

Work of agent. To sustain an information for engaging in common labor on Sunday, by selling unlawfully two gills of spirituous liquor, which were sold by the defendant's agent in his bar-room, it should appear that the defendant was present, or had some knowledge of the selling when it was being done. 18 Ind. 35.

Profanity.

SEC. 1. Every person of the age of eighteen years and upwards who shall profanely curse, swear, aver, or imprecate by, or in the name of, God, Jesus Christ, or the Holy Ghost, shall be deemed guilty of profanity, and, on conviction thereof, shall be fined in the sum of not less than one nor more than three dollars for each offense. Act of March 2, 1855. 2 R. S. 679.

CHARGE.

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That A. B., on the at said county, unlawfully did profanely curse, swear, aver, and imprecate by and in the name of God and Jesus Christ, by then and there [here state the language constituting the profanity].

Appeal from justice.-In the case of a fine imposed by a justice of the peace, for profane swearing, the defendant may appeal to the circuit court. R. S. 1838, p. 362, sec. 11; 7 Blackf. 551.

Jurisdiction.-Justices of the peace have exclusive original jurisdiction in prosecutions for profanity. 2 R. S. 669, sec. 3. See 2 Blackf. 251.

Selling unwholesome provisions-Public indecency.

SEC. 10. SELLING UNWHOLESOME PROVISIONS.

1. Selling unwholesome for wholesome provisions.

SEC. 11. Every person who shall knowingly sell any unwholesome for wholesome provisions, shall be fined not exceeding five hundred dollars, to which may be added imprisonment in the county jail, for a period of not more than six months. 2 R. S. 462.

CHARGE.

day of, in the year

That A. B., on the at said county, unlawfully and knowingly sold to C. D., twenty pounds of fresh pork for the sum of two dollars, as sound and wholesome provisions, the same being then and there unsound and unwholesome, tainted, fly-blown, and putrid; and he, the said A. B., then and there well knowing the same to unsound and unwholesome, tainted, fly-blown, and putrid.

SEC. 11. PUBLIC INDECENCY.

SEC. 22. Every person who shall be guilty of notorious lewdness, or who shall, in any public place, make any un-covered and indecent exposure of his or their person, upon conviction thereof, shall be fined in any sum not less than ten nor more than one hundred dollars, to which may be added imprisonment for any term not exceeding three months. 2 R. S. 466.

CHARGE.

day of

in the year

That A. B., on the at said county, unlawfully, at a certain public place then and there situate, to wit, in the Ohio river, at the foot of street, in the city of New Albany, made an uncovered and indecent exposure of his person, by then and there taking off all his clothes and bathing naked in said river. Bicknell's Crim. Pr. 449.

The old statute against public indecency was as follows: "Every person who shall be guilty of notorious lewdness, or other public indecency, upon conviction shall be fined not exceeding one hun

Open and notorious adultery and fornication.

dred dollars, and imprisoned not exceeding three months. 2 G. & H. 464.

Under that statute, our supreme court decides: "The terms "public indecency," as used in § 22 of the "act defining misdemeanors, etc., do not sufficiently define any public offense; and consequently no act is made criminal by their employment in the statute. 16 Ind. 335.

And again: There is no such offense under our criminal code as public indecency. Id. 338.

Subsequently the legislature amended the statute, and the law now stands as first above given.

Using obscene language.-Under the statute against "notorious lewdness or other public indecency," a prosecution will not lie for using obscene language, or singing obscene songs. 10 Ind. 140. Whatever openly outrages decency, and is injurious to morals, is indictable. 1 Hawk. P. C., ch. 5, § 4.

The indictment must aver and the proof show exposure and offense to the community generally, as mere private lewdness or indecency is not indictable. 2 Whart. Crim. Law, § 2385.

The term "public indecency" was always held to apply especially to indecent exposure of the naked human body; and our statute, as amended, is substantially a re-enactment of a part of the common law. Bicknell's Crim. Pr. 449.

SEC. 12. OPEN AND NOTORIOUS ADULTERY AND FORNICATION.

SEC. 21. Every person who shall live in open and notorious adultery and fornication shall be fined in any sum not exceeding one thousand dollars, and imprisoned not exceeding twelve months. 2 R. S. 466.

CHARGES.

1. Living in open and notorious adultery.

That A. B., on the

day of in the year

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at said day of —,

county, and from that day continuously until the in the year -, at said county, unlawfully lived in open and notorious adultery together with one C. D., a woman, who was then and there, and during all the said time, the wife of one E. D., who was then and there living. Bicknell's Crim. Pr. 447.

Open and notorious adultery and fornication.

2. Living in open and notorious fornication.
in the year

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That A. B., on the county, and from that day continuously until the —

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at said

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in the year, at said county, unlawfully lived in
torious fornication together with one C. D., a woman. Id. 448.

FORM AND CONTENTS.

Information and affidavit.-Information charging that the defendant lived in open and notorious fornication from September 20, 1858, until October 25, 1859. The affidavit upon which the information was based, charged the offense from October 20, 1858, until September 25, 1859. Held, that the information was good on motion in arrest. 16 Ind. 111.

What is adultery, and what fornication.—If a man have criminal intercourse with a married woman, the offense is adultery, and not fornication. 2 Blackf. 318.

The indictment may be against both the parties jointly; and an indictment for adultery should show that the woman was not the defendant's wife. Bicknell's Crim. Pr. 447.

The affidavit must charge a living together. 14 Ind. 280.

Definition of crime.-An indictment for living in open and notorious fornication may be founded upon the 21st section of the act of June 14, 1852 (2 R. S. 1876, p. 457), "defining misdemeanors," etc., though such offense is not defined by such section.

Same-Fornication defined.-Fornication is sexual intercourse between any man and an unmarried woman.

Same-Adultery defined.-Adultery is sexual intercourse between a married woman and any man other than her husband. 56 Ind. 263.

Fornication Statute of limitations--Concealment of offense-Statute construed. An indictment for open and notorious fornication alleged that the defendant, during the time specified, more than two years prior to the finding of the indictment, had openly lived and cohabited with a certain unmarried woman, and had "concealed the fact of said crime until," etc., " by publicly acknowledging and claiming the said woman to be his wife." Held, that the indictment is insufficient, the alleged concealment not being of the fact of the crime charged. Held, also, that the mere denial by the defendant of having committed a crime charged, is not such a

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