2. An Indecent Exposure Seen by one Person Only and capable of being seen by one person only, is not an offense at common law; secus, if there are other persons in such a situation as that they may be witnesses of the exposure. CASE reserved by Deasy, B., from the last commission at Green Street, held by Deasy and Fitzgerald, BB. The prisoner was tried for indecent exposure of his person. The first count of the indictment charged that the prisoner on the 27th of September, 1862, being a scandalous and evil disposed person, and devising, contriving and intending the morals of divers, liege subjects to debauch and corrupt, on a certain public and common highway, situate at Rathgar Road, in the county of Dublin, in the presence of divers, liege subjects, and within sight and view of divers other liege subjects through and on the same highway then and there passing, unlawfully, etc., did expose his person. The second court charged the prisoner with committing the same offense on the 24th of September, on the public highway aforesaid. The third count charged the commission of the like offense, on the 25th of September, in the presence of, and within sight of divers liege subjects, without stating the offense to have been committed on the public high road. On the trial a policeman named Reynolds was examined, who stated that on the 27th of September, he saw the prisoner expose his person in a piece of ground near the road, he being turned so, that people passing on the road could see, but there being no person on the road. This was repeated, there being then also, no person on the road. On a third occasion, on the same day, he did the same, there being then two females coming up the road. A woman was also examined, who deposed that on the 25th of September, she was in a house adjoining the road, cleaning the parlor, when she saw the prisoner commit the offense, in the piece of ground spoken of by the first witness. She also deposed that she saw him commit the offense on the 27th of September. Counsel for the prisoner objected that there was no evidence to sustain the allegation in the indictment, that the prisoner exposed his person on a public highway. Counsel for the Crown contended that the first count was sustained, but applied to amend the second count, by inserting the words "in a place in view of a public high road." The amendment was allowed. At the close of the case, counsel for the prisoner objected; first, that there was no evidence to sustain the allegation in the several counts, that the prisoner exposed his person on a public highway; second, that there was no evidence of any public exposure; third, that the court had no jurisdiction to amend the second count in the manner specified; fourth, that even upon the second count as amended, there was no evidence of a public exposure; and he called upon the court to direct an acquittal. This the court refused to do, but left the case to the jury, who convicted the prisoner, who was then sentenced to twelve months imprisonment; but the questions raised on his behalf were reserved for the Court of Criminal Appeal. Curran, for the prisoner, opened the case, but was stopped by the court, who called upon Sullivan, Serjeant, (with him Beytagh), for the Crown, to sustain the conviction. The first count charging the offense to have been committed on the 27th of September, is sustained by the evidence of Reynolds. [MONAHAN, C. J. Is there any authority to show that when the indictment is for an exposure on a public road, evidence of an exposure near the road will sustain the indictment?] There is not. The indictment might be read as expressing that the prisoner meant to corrupt, etc., persons on the road. [MONAHAN, C. J. We can not give the indictment that meaning]. Then as to the second count as amended. No doubt, the exposure was seen only by one person, but the prisoner exposed himself in such a way that any person who might be passing by might see him.1 [MONAHAN, C. J. It is evident that there were persons on the road in the case mentioned by Parke, B.]2 * MONAHAN, C. J. We must quash the conviction; but it is not to be taken that we lay it down, that if the prisoner was seen by but one person, but there was evidence that others might have witnessed the offense at the time, we would not uphold the conviction; but in this case there is no evidence that any one could have seen the prisoner commit the offense on the 24th of September, except the one female. Therefore, all that we say is, that an exposure seen by one person only, is not an offense at common law. If there had been others in such a situation as that they could have seen the prisoner, there would have been a criminal offense. NUISANCE- DISORDERLY HOUSE. MCELHANEY v. State. [12 Tex. (App.) 231.] In the Court of Appeals of Texas, 1882. 1. A Disorderly House is a house "kept for the purpose of public prostitution, or as a common resort for prostitutes and vagabonds." The mere fact that a business establishment, such as a liquor saloon, was habitually resorted to by prostitutes and vagabonds, as well as by good citizens, does not constitute it a disorderly house. 1 King v. Webb, 2 C. & K. 933, and the case mentioned by Park, B., at p. 935, of the Report. 2 King v. Crunden, 2 Campb. 89; Queen v. Watson, 12 Cox, C. C. 3767; King v. Sedley, Id. p. 68. 2. Same-Facts of the Case.-See evidence held insufficient to sustain a conviction for keeping a disorderly house. APPEAL from the County Court of Johnson. Tried below before the Hon. W. J. EWING, County Judge. The substance of the evidence is clearly embodied in the opinion of the court. A fine of $100 was the penalty assessed against the appel lant. J. N. English and Poindexter & Padelford, for the appellant. WILLSON, J. The information in this case charges that the defendant did unlawfully keep a disorderly house, the same being a common resort for prostitutes and vagabonds. The evidence to support this charge is substantially as follows: Defendant kept a saloon in Cleburne, Johnson County, in which he kept whiskies, cigars, ice, etc., for sale. There were two rooms in the house. In one of the rooms was situated the bar and a piano. In the other room were chairs and tables. Women commonly known as prostitutes were frequently seen in this saloon, sometimes in the bar-room and sometimes in the other room. Sometimes these women would be drinking, and sometimes they would not. Two or three men, who had no residence, occupation, or visible means of support, also frequented this house. A great many good people also went to defendant's house after beer, liquor and ice. The mayor of Cleburne testified that he frequently visited defendant's saloon to get drinks, and that a great many good people went there to buy ice and other articles kept for sale, and that he never saw anything wrong there. The defendant, upon this testimony, was convicted and fined $100, and from this conviction he has appealed to this court. There are several errors assigned by defendant, but we shall consider but one: that is, that the verdict of the jury and judgment of the court are contrary to the law and evidence. Article 396 of the Penal Code defines a disorderly house to be “one kept for the purpose of public prostitution, or as a common resort for prostitutes and vagabonds." It is not every house to which prostitutes and vagabonds resort that thereby becomes a disorderly house within the spirit and intent of this law. But to bring the house within the inhibition of the statute it must be kept for the purpose of public prostitution, or as a common resort for prostitutes and vagabonds. Does the evidence in this case show that this house was kept for either of the unlawful purposes named in the statute? We do not think that it does. The defendant was engaged in carrying on a legitimate business in that house. He kept there various articles of trade for sale, and sold the same to whoever desired to purchase. While it is true that prostitutes visited his house, it is also true that a great many good people went there for the lawful and innocent purpose of purchasing ice, etc. There was not a witness who testified in the case — and there were a number of them—who had not frequently visited defendant's house to purchase articles that he kept there for sale. None of the witnesses ever observed any disturbance or disorderly conduct at the house. This case differs in its facts from the cases of Couch v. State, and Brown v. State. In both the cases named the houses named were shown to be "dance-houses " and common resorts for lewd women, and clearly within the inhibition of the statute. Believing, as we do, that the evidence in this case does not support the charge, the case is reversed and remanded. Reversed and remanded. DISORDERLY HOUSE-MUST BE IN PUBLIC PLACE-OR AFFECT PUBLIC. MAINS v. STATE. [42 Ind. 327; 13 Am. Rep. 364.] In the Supreme Court of Indiana, 1873. A House Which is not in a public place, or does not affect the public, or disturb or annoy them, can not be a disorderly house. The appellant was indicted for a nuisance, and convicted, and judgment was rendered against her over motions to quash, and in arrest of judgment. Exception. "State of Indiana against Nancy Mains - Indictment for nuisance. "The grand jurors of Noble County, in the State of Indiana, good and lawful men, duly and legally impaneled, charged, and sworn to inquire into felonies and certain misdemeanors in and for the body of said county of Noble, in the name and by the authority of the State of Indiana, on their oaths present, that one Mary Mains, late of said county, on the 20th day of April, in the year A. D. 1872, and on divers other days and times between that day and the making of this presentment, at the county of Noble and State of Indiana, did then and there unlawfully keep and maintain a certain common, ill-governed and disorderly house, and in said house certain persons, as well men as women, of ill name and fame, and of dishonest conversation, then and there, on 1 24 Tex. 559. 2 DEFENCES. 47 2 2 Tex. (App.) 189. the said other days and times, unlawfully and willingly did cause and W. M. Clapp, F. Prickett, and A. A. Chapin, for appellant. WORDEN, J. Several objections are made to the indictment, but we shall notice one only, as that seems to be fatal, whatever might be said in respect to the others. The indictment does not allege that the house which the appellant was charged with keeping was situate in any public place, as in a city, town, or village, nor near any public street or highway; nor does it allege that any person resided near thereto, or was in the habit of passing thereby. In short, there is nothing in the indictment which shows that the house was in the vicinity of any inhabitants, or that any person ever came near it, save those who congregated there by the alleged procurement of the appellant. In the language for the counsel for the appellant, "For aught that appears, it may have been in the woods, away from the sight and hearing of every citizen of the State." The keeping of a house where tippling, drinking, and whoring are carried on is not a nuisance, unless the public is affected by it. ances. A writer on criminal law says: "The term disorderly house is sometimes used in a very broad sense, as including bawdy-houses, common gaming houses, and places of a like character, to which people promiscuously resort for purposes injurious to public morals, or health, or convenience, or safety. These places are all indictable as public nuisA house so kept that no person other than its inmates are liable to be disturbed by it, or corrupted in their morals, or anything of the sort, is not in law a disorderly house. The difficulty within must reach beyond the mere inmates and affect the public.”1 Inasmuch as such a house described in the indictment is not a nuisance per se, but can only become so by reason of the public being affected thereby, the indictment should have alleged the facts making it a nuisance, as that it was in a public place, or that people resided near 11 Bish. Cr. L., secs. 1046, 1051. |