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sex, laborer, on the 2d day of October,1 with force and arms, at the parish aforesaid, in the county aforesaid, in a certain public place, within a certain victualing ale-house there situate, unlawfully, willfully, publicly and indecently did expose and exhibit his private parts, naked and uncovered in the presence of Mary Ann, the wife of Edward Cherrile, and of others of the liege subjects of our Lady the Queen, then and there being, for the space of divers, to wit, ten minutes, to the great damage, and common nuisance of the said Mary Ann Cherrile, and the other liege subjects of our said Lady the Queen then and there being, to the great encouragement of indecency and immorality, and against the peace of our Lady the Queen, her crown and dignity."

The jury found the prisoner guilty, and the Assistant Judge, ADAMS, reserved for the opinion of the judges, the following case, to which a a copy of the indictment was annexed:

"James Webb was indicted at the Clerkenwell Sessions for an indecent exposure.

"On the trial it was proved by the prosecutrix that she was taking care of a public-house and standing behind the bar, through which was the public passage from the entrance door of the public-house to the barparlor; that he conducted himself in an offensive manner, but not amounting to an indecent exposure, and whilst so doing several persons passed to and fro; that he then took out and exposed his private parts to her, and thereupon she directly ran off and told her husband; that there was no one in sight but herself at the time when she saw his private parts exposed.

"Two points were made: First. That an indecent exposure in the bar of a public-house is not an indictable offense. Secondly. Assuming the plea sufficient, there must be more than one person present at the time of the exposure or the offense is not complete.

"The jury under my direction found the prisoner guilty, subject to the opinion of the judges on the above points. The judgment is respited.

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Before POLLOCK, C. B., PARKE, B., PATTESON, J., CRESSWELL, J., and VAUGHAN WILLIAMS, J. [Dec. 10.]

Clarkson, for the defendant. I submit that in this case, the indictment is bad; and that, to constitute the offense intended to be charged the act must be done in an open and public place, and publicly, and to the people; and the exposure of the person of a man to one woman

1 12 Vict.

only is no offense, unless it be done with an intent to insult her, and then it is punishable under the vagrant act. Mr. East, in his Pleas of the Crown, says: "All scandalous breaches of morality exhibited in the face of the people," are misdemeanors: "Such as was the conduct of one who exposed himself naked from a balcony in convent garden." So Mr. Serjeant Hawkins says: "All open lewdness, grossly scandalous," like that before mentioned, is indictable; and in the case of Rev. Crunden, it was held to be an indictable offense for persons to expose themselves, for the purpose of bathing, in view of the inhabitants of a row of houses. The first case on the subject is that of Sir Charles

Sedley.2

CRESSWELL, J. Sir Charles Sedley came out naked on a balcony in Covent Garden.

PARKE, B. There was a trial in Yorkshire, in 1830; it was an indictment against a French master, for exposing his person at a window in Micklegate, York, to excite a girl who was a servant on the second floor of the house on the opposite side of the street; and I left it to the jury to say whether those in the street could have seen him or not (not whether they did see him); and that, if they could have seen him, it was a nuisance.

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Clarkson. Mr. Chitty in his edition of Burr's Justice says: indecent exposure of the person to public view is an indictable offense at common law; " and the case of Regina v. Watson appears to be precisely in point with the present.

PARKE, B. The case at York was that of Rex v. Renouard. I have a perfect recollection of it. I left it to the jury to say whether the defendant could be seen by the persons in the street; and that exposing himself to the female servant alone was not sufficient to constitute the offense. The jury found him guilty; I considered it a public offense, and passed sentence accordingly.

Clarkson. I submit also that the indictment is bad on the face of it. PARKE, B. That, if so, might be taken advantage of on writ of error. POLLOCK, C. B. (having conferred with the other learned judges). We are all of opinion that you may go into the objections that appear on the face of this indictment.

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Clarkson. The words in the indictment are expose" and 'exhibit; "expose" is derived from exporio, and "exhibit" from exhabeo; and it is not stated that he exposed his person "to" the other' persons, but "in the presence of."

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Clarkson. Not always, as the person might be blind, the indictment

1 2 Camp. 89.

21 Sid. 168 (in K. B.).

omits to state that the exposure was in the sight or in the view of others.

PARKE, B. It is averred to be in a public place.

Clarkson.

I should submit that a passage in a public house was not

a public place for this purpose.

PATTESON, J. The nature of the house may be material; a sale of an obscene print is always averred to have been in a shop.

Prendergast, for the prosecution. The indictment alleges the offense to have been committed in a certain public place, and this sort of passage in a public house is a place to which all persons have a right to go. The charge is, that the defendant did indecently expose and exhibit himself in the presence of, etc.

POLLOCK, C. B. The word "indecently" has no definite legal meaning; and with respect to the word " presence," I remember that, in our older courts of justice, the court retired to a corner of the court for a necessary purpose, even in the presence of ladies. That, perhaps, would be considered indecent now.

Prendergast. In the case of Regina v. Watson, the indictment charged the offense to have been committed in a church yard - not always an open place and to have been to corrupt the morals of Lydia Crickmore; and it in effect charged an attempt to corrupt the morals of one particular female alone. But if a person attempts to injure public morals or public rights, he commits a public offense.

PARKE, B. This is not charged to be to the common nuisance of the Queen's subjects.

Prendergast. Nor does a road indictment so charge.

VAUGHAN WILLIAMS, J. An indictment against a scold would be good if it alleged the offense to have been committed to the common nuisance of divers of the legal subjects of the Queen.

PARKE, B. The publication of an obscene libel is an offense if it be sold in a shop. Would the giving it away, in one instance, be so? Prendergast. Exhibiting a monster is indictable.

POLLOCK, C. B. Was the exhibition of Daniel Lambert a nuisance? Prendergast. Any public exhibition of an indecent object would be indictable.

POLLOCK, C. B. But not of a monster.

Prendergast. This indictment charges a nuisance as much as an indictment for the non-repair of a highway charges it.

PARKE, B. That is to the common nuisance of all the Queen's subjects passing and repassing.

POLLOCK, C. B. The indictment against Sir Charles Sedley charged him with the exposure, in the presence of divers liege subjects, and within sight and view of divers liege subjects.

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PATTESON, J. And it charged that he did expose to the view of divers liege subjects, and I think it must be so stated; why not say, expose to the view?" it is in all the precedents; it is so in the form in Archbold's Criminal Pleadings, and I think that is the precedent in Sir Charles Sedley's Case.

Prendergast. Mr. Archbold's precedents are not authority. POLLOCK, C. B. Mr. Archbold's works are remarkable for their ac curacy, and all his works are prepared with the greatest care. I have had occasion to consult them on several occasions. Where words have no legal signification, it must be shown that that which was done constitutes the offense. If an indictment charges that the thing was done within sight and within view of persons, that imports, not that they did see it, but that they could see it. This indictment only says, " in the presence of;" and might be that the defendant took particular care that it should not be seen. My Brother PARKE thought that the crime was not committed, unless more than one person might see; but that, if the exposure was to one only, it did not amount to the offense.

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PARKE, B. I thought that, if only one person could see the exposure, it was not the offense; but that, if the persons in the street could have seen it, it was the offense, though it was not proved that they did see it. The words "expose" and "exhibit," having no legal meaning, it may have been that Mary Ann Cherrile did not see the exposure, and was intended not to see it. In the case at York, there was no evidence that any one in the street did see the defendant, but only that persons going along the streets could have seen him.

Prendergast. I submit that, when the exposure is made in such a way that persons may see it, it is immaterial whether they did see it or not. PARKE, B. The printing and publishing an indecent libel is an offense; that was so held in Curll's Case,1 which was the first case on the subject.

Clarkson, in reply. Exhibiting an obscene print in a public place is made an act of vagrancy.

PARKE, B. That was to make the offense more easy of prosecution. CRESSWELL, J. There was a case of a tin man, who was indicted for a nuisance to Clifford's Inn. It only affected particular chambers, and Lord Ellenborough held, that it was a nuisance to too few to be indictable. That may show, that, if it had been to the nuisance of more it would have been indictable, without its being a nuisance to all the king's subjects; and that charging a nuisance to "divers" of the king's subjects, might be sufficient.

Clarkson. There is nothing here to show that any person whatever either did or could see this offense commited.

1 17 St. Tr. 153.

POLLOCK, C. B. It appears to me that in this case the conviction ought not to have taken place. I consider that the case of Regina v. Watson governs the present. It is not necessary to decide whether this indictment is sustainable, or whether it is bad in arrest of judgment; though, in passing, I would observe, that it would always be better to adhere to the established forms. But the point upon which I ground my opinion is simply this: In the case of Regina v. Watson, the first count of the indictment charged the exposure to be to one person, and the second count to "divers." The defendant was acquitted on the second count, because the exposure was to one only, and the judgment was arrested on the first count. Now, striking out of the present indictment all that is not proved, and leaving only that which was proved, we should arrest the judgment. The result, therefore, is, that, taking the case as it was proved, there was not enough to constitute the offense, and the defendant ought to have been acquitted.

PARKE, B. Whether the indictment is good or not is not the question. I think it may be good. I am disposed to think it is a good indictment; but if we strike out of it what is not proved, it only charges an exposure to one per son, which has never been held to be an indictable offense; and in Regina v. Watson, it was held that it was not so.

PATTESON, J. I entirely adhere to the case of Regina v. Watson. 1 was present at that case. If you strike out that part of the present indictment which was not proved at the trial, it does not state enough to constitute an indictable offense. I wish to guard myself against saying that this is a good indictment. I have great doubts about it.

CRESSWELL, J. I should require some consideration before I held that this was a bad indictment; but, if there was omitted from it all that is not proved, I think it clearly would be so.

VAUGHAN WILLIAMS, J. I quite agree with the rest of the court, on the authority of the case of Regina v. Watson.

Conviction wrong.

INDECENT EXPOSURE

EXPOSURE TO ONE PERSON ONLY - INDICTMENT-PUBLIC HIGHWAY.

R. v. FARRELL.

[9 Cox, 446.]

In the Irish Court of Criminal Appeal, 1862.

1. An Indictment for Indecent Exposure charging the offense to have been committed on a highway, is not sustained by evidence that the offense was committed in a place near the highway, though in full view of it.

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