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§ 306.

Drunkenness is not indictable

Drunkenness not Indictable. unless it is public, and to the annoyance of the public.1

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§ 307. "Common Drunkard.”—To convict a man of being a common drunkard" it must be shown that he is an "habitual drunkard." A man who has been drunk three times in six months is not a common drunkard.2

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§ 308. "Common Drunkard" - User of Chloroform. - One who habitually intoxicates himself with chloroform is not a common drunkard.3

§ 309.

Eavesdropping - Peeping.-"Peeping or looking privily is not indictable, a man being allowed to look wherever he pleases; but to constitute eavesdropping there must be a listening or hearkening of the discourse."

§ 310.

Indecent Exposure. —An indecent exposure must take place in

the presence of more than one person.5

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§ 311. Indecent Exposure- Public Place - Public Urinal Not-Statement of Offense. -- In R. v. Orchard, the indictment alleged that O. in a 66 certain and open and public place did lay his hands on the person and private parts of T. with intent to stir up in his own and T.'s mind, unnatural and sodomitical desires and inclinations and to incite T. to the committing and perpetrating with O. divers unnatural and sodomisical acts, and that T. in the said open and public place did permit and suffer the said O. to lay his hands, etc., with the like intent." The place where this transaction occurred was proved to be in Farringdon Market. It was an enclosure formed of Portland stone, with divisions or boxes like the urinals at railway stations. It was open to the public for certain proper purposes, but otherwise inclosed. There was an aperture in the stone work to enable persons to lock through and watch the proceedings of those inside.

Clarkson and Ballentine (for the defendants) contended, that the indictment was not supported by the evidence, and that the indictment was not sufficient in itself. It is not enough to say that the parties committed the act in a public and open place, but it must be laid to have been within sight of Her Majesty's subjects. There an indictment which charged the defendant with having indecently exposed himself in a certain public and open place in the presence of one person only, could not be sustained. A place accessible to the public was a very different thing from an open and public place. The first count is bad for want of certainty on the authority of R. v. Rowed, and the other counts do not carry the case further; they allege certain acts done, but done with an intent to commit no specific crime.

1 State v. Deberry, 5 Ired, 371 (1845); State v. Waller, 3 Murph. 229 (1819). As to construction of New Hampshire statutes as to drunkenness, see State v. Otis, 42 N. H. 71 (1860).

2 Com. v. Whitney, 5 Gray, 85 (1855). It is also intimated in this case that the word "common" in this connection means" public," and that to be within this phrase a man must be not only a habitual drunkard, but so to the disturbance of the public peace and good order.

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3 Com. v. Whitney, 11 Cush. 477 (1853). 4 Com. v. Mengelt, cited in Com v. Lovett, 4 Clark (Pa.),5 (1831).

5 R. v. Elliott, L. & C. 103 (1861); R. v. Watson, 2 Cox, 377 (1847); R. v. Farrell, 9 Cox, 446 (1862); R. v. Webb, 2 C. & K. 933 (1848).

6 3 Cox, 249 (1848).

7 R. v. Watson, 2 Cox, Cr. Cas. 376.
83 Q. B. 180.

Ryland (with him Laurie), for the prosecution. If the place be so constructed that the passers by can see what takes place within, it is sufficiently public. CRESSWELL, J. Suppose it to be an enclosed stall in a market.

Ryland. The public generally would not have a right, as a matter of course, to go in there. Here the place is entirely open to such of the public as choose to enter it. The market is public, the enclosure within it is so also; and it can not be urged by those who took the risk of having their conduct witnessed by several persons that the place was not a public place for the purposes of this indictment. As to the case,1 there only one individual was alleged to have seen the act none.

CRESSWELL, J. And here there is an exposure of one of the parties charged to the other.

Ryland. But the indictment goes further: It alleges that one laid his hands on the person of the other, etc., and that the other submitted, etc.

CRESWELL, J. Here you say he did a certain act tending to something else, which something else ought to be described. In R. v. Rowed the meeting for the purposes there generally set out was held not sufficient. You do not rely upon the act itself as the offense; it is the intent with which it was done; then the intent is very much in the same terms as that alleged in R. v. Rowed, which was held defective.

Ryland. In that case no act was stated to have been done. It was merely alleged that the parties met for the purpose of doing certain things, describing them generally. Here it is stated that certain acts were done, which we rely on as evidence of an attempt to commit a felony.

CRESSWELL, J. Although the place in question is in Farringdon Market, it is not a public place for the purpose of this indictment. Every man must expose his person who goes there for a proper purpose. R. v. Watson decides that the exposure to one person is not sufficient. Then the acts relied on here are not sufficient of themselves to constitute an offense, and that offense, which, it is alleged, they were an incitement to commit, is not described in sufficiently legal language. An incitement to commit a felony described in proper terms would be a very different charge from the present one. ERLE, J., concurred.

§ 312.

Instruments to Prevent Conception. -The common law does not prohibit the sale of instruments to prevent conception; nor does the statute law of Pennsylvania.2

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§ 314. Lewdness-Living together in an Open State of Fornication. - In order to constitute this crime within the Illinois statute, the parties must dwell together openly and wantonly as if they were married. There must be habitual illicit intercourse between them. "The object of the statute was to prohibit the public scandal and disgrace of the living together of persons of opposite sexes, notoriously in illicit intimacy which outrages public decency,

1 R. v. Watson.

2 Com. v. Leigh, 15 Phila. 373 (1881).

3 State v. Kennison, 55 N. H. 242 (1875).

4 Williams v. State, 64 Ind. 553 (1878).

having a demoralizing and debasing influence upon society. They may indeed live together in the same family, but if apparently chaste, regularly occupying separate apartments, a single instance of illicit intercourse would not constitute the crime.1

§ 315.

"Lewdly and Laciviously Cohabiting." —This also means open and notoriously living together as husband and wife. Therefore it is held that proof of two acts of illicit intercourse between the parties is not sufficient.2 "By cohabiting must be understood a dwelling or living together, not a transient or single indiscreet interview.""

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Acts

§ 316. "Open and Gross Lewdness and Lascivious Behavior". must be Public. -In Commonwealth v. Catlin, in the first count it was charged that the defendant, being a married man, committed the above offense by lying on a bed with one A. D., she, A. D., not being his wife. The second was the same, the act being his putting his arms around A. D. The third was the same as the first, but at a different time. The evidence in support of the first charge arose from the testimony of a witness who said that on the day mentioned in the indictment, and in the day-time, he was at the dwelling-house of A. D., and that he there saw the defendant on a bed with her, in a very familiar situation. This witness testified that the bed was in a room, the doors of which were shut, and the window-shutters of the front windows closed, but that he saw the defendant and A. D., by looking through the glass, or a broken pane of glass, he did not recollect which, of an end window. The same witness testified that on the same day in the day-time, he saw the defendant throw his arms about the said A. D. and hug her; this, he said, was in the stoop or piazza of the `dwelling-house, the witness being in the house, and seeing the transaction through a door-way, the door being partly shut. In support of the third count, another witness testified that in the evening of the day mentioned in that count, when it was very dark, he was sitting in a room of the same dwelling-house alone; that A. D. was in an adjoining room (the door of communication between the two rooms being open) sitting on a bed; that while he was so sitting in the room, a man, whom he believed to be the defendant, passed through the room in which the witness then was, went into the other room to the said A. D., there being no light in the same, except a dim light arising from the fire in the chimney, sat down on the bed with her, and that the defendant and A. D. soon after both got upon the bed, where they were together about fifteen minutes, when the defendant arose from the bed, and went away, without seeing the witness, as he believed. The counsel for the defendant offered no evidence, but contended that as open gross lewdness was charged, and that only in the indictment, the evidence on the part of the government did not in any degree support the charge; nothing more being proved, at the utmost, than secret acts. The court (STRONG, SEDGWICK, SEWALL, and THATCHER, Justices) were unanimously of opinion, and STRONG, J., who charged the jury, stated it as the unanimous opinion of the court, that although it might be true that the facts proved amounted to an offense, yet that they did not prove the

1 Searls v. People, 13 Ill. 597 (1852).

2 State v. Martin, 12 Iowa, 499 (1861). And it is a joint offense, of which both par

ties must be guilty or neither. Delaney v.
People, 10 Mich. 241 (1862).

3 Com. v. Calef, 10 Mass. 153 (1813).
4 1 Mass. 7 (1804).

offense charged in the indictment; that the offense charged is open gross lewdness and lascivious behavior, and nothing more; admitting everything which has been testified to be true, there is certainly nothing more proved than secret or private lewdness and lascivious behavior, which can not in any degree support the charge in the indictment.

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§ 317. -"Obscene and Vulgar Language.". In Dillard v. State, Brown, C. J., considered that to ask a female to "go to bed with him" was not "obscene and vulgar language" within the penal code.

§ 318.

Obscene Language—“In Presence of Family or Female." — An Alabama statute makes it an offense to use abusive, vulgar or insulting language in one's dwelling-house or curtilage or on the public highway and in the presence of the family of the owner or possessor or any member thereof or of any "female." Under this statute the presence of one of the parties mentioned is essential to a conviction.2

§ 319.

Obscene Language ·

"Public Highway.”—A railroad track is

"public highway" within a statute as to using vulgar and insulting lan

not a guage.3

Obscene Picture

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§ 320. What are Not "Naked Girls."- In Commonwealth v. De Jardin, the court in reversing a conviction say: "The indictment in this case avers that the defendant 'unlawfully and scandalously did print and publish certain obscene pictures, figures, and descriptions, to wit, pictures, figures and descriptions of naked girls, manifestly tending to the corruption of the morals of youth.' It is not necessary to decide whether this indictment can be held to be sufficient under the statute. If it can be, there was a fatal variance between the allegation and the proof. The court admitted evidence that the defendant took photographic pictures of two young girls naked down to the waist; and instructed the jury that, if they found such pictures to be obscene and indecent, and to have been delivered to the girls, they should convict the defendant. This was erroneous. The allegation that the defendant printed and published pictures and figures of naked girls is not met by proof that he printed and published pictures and figures of girls, for the greater part clothed. The government, having described the pictures, is bound by the description, and the defendant could not be convicted upon proof that he printed and published pictures substantially different from the description, though the jury might find such pictures to be obscene."

§ 321.

Profanity. - Profane swearing at common law is not indictable, unless so publicly as to be a nuisance to the public.5

§ 321a. An Isolated Act is not Indictable. — In Gaines v. State, the court said: "The uttering in the case before us was in the public street of East Knoxville about nine o'clock at night. Four persons heard the words, the prosecutor at whom the oath was directed, his wife, another female who was

1 41 Ga. 278 (1870).

2 Ivey v. State, 61 Ala. 58 (1878).

3 Corner v. State, 62 Ala. 320 (1878). 4 126 Mass. 46.

Delaney, ex parte, 43 Cal. 479 (1872): State v. Jones, 9 Ired. 38 (1848); State r. Powell, 70 N. C. 67 (1874).

67 Lea, 410 (1881).

with the prisoner, and a citizen living on the street who was induced to come to the front of his house by the loud talking between the defendant and the prosecutor. The prosecutor testified that the defendant used the words of the indictment, less one vituperative epithet, twice; once when the defendant came to the prosecutor's house, and the second time after he had left the house and was in the middle of the street. The proof is that the defendant, at the request of the woman who was with him, accompanied her to the prosecutor's house, and remained outside while she went in and had a conversation with the prosecutor and his wife. The other three witnesses all concur in saying that the words used were uttered only once, when the prosecutor and the defendant were in the street after the interview in the house. The two women concur in saying that the defendant used the words charged, omitting the name of the Deity. The remaining witness proves the use of the words charged, but only once. Neither the mode of utterance nor the circumstances were such as to require a departure from the general rule. It is very certain that the words were only uttered once in the hearing of any other person than the prosecutor, and probably only the one time. In any view the offense is not made out and the judgment must be reversed. Judgment reversed."

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§ 322. Nuisance-Sending Unwholesome Provisions to Market. necessary that they should be intended for human food. In R. v. Crawley,1 the prisoner was indicted for misdemeanor in having unlawfully sent a quantity of pork to Newgate Market as fit for human food, the same being in a diseased and unwholesome state. It appeared that the prisoner was a higgler at Leighton Buzzard, and that on the 5th of March he sent the carcasses of two pigs to Mr. Burrows, a meat salesman in Newgate Market. These carcasses were seized by Mr. Fisher, one of the inspectors of the market, and proved to be in a most diseased and unwholesome state, and totally unfit for human food, these facts being deposed to by Dr. Letheby, the medical officer of the city, as well as the inspector. When the defendant was questioned upon the subject he admitted that he had sent the meat to market, but said that he did not intend it to be sold for human food, but to be boiled for dogs, and he called a witness, a bone boiler, who stated that the defendant had spoken to him upon the subject of the carcasses in question, on the same morning.

WILLES, J. (to the jury). If the prisoner did not mean that the meat should be sold as and for human food, nor send it for that purpose you may acquit him.

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Verdict, not gulty.

§ 323. Nuisance Supplying Unwholesome and Poisonous Water. - The supplying a community with poisonous and unwholesome water by one who con tracts to supply water to a city is a nuisance. But it is essential that the defendant should by himself or agents have poisoned the water or should know it to be so. In Stein v. State, it is said: "The indictment charges that the poisonous water was supplied to all the citizens of Mobile, and to those who might visit the city. Such an act is sufficiently general and extensive in its effects to constitute a nuisance; and the poisoning of the water consumed by an entire community, and by all who might go that way, would certainly possess the quality of injuriousness to the community, requisite to constitute a nuisance. If, then,

13 F. & F. 109 (1862).

2 37 Ala. 130 (1861).

3 1 Bish. Cr. L. 352; 2 Ib. 848.

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