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. § 317. "Obscene and Vulgar Language.”. In Dillard v. State,1 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 not a "public highway" within a statute as to using vulgar and insulting language.3 4 § 320. Obscene Picture - 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." $ 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. 6 Delaney, ex parte, 43 Cal. 479 (1872'; State v. Jones, 9 Ired. 38 (1848); State v. 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." § 322. Nuisance-Sending Unwholesome Provisions to Market. It is 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. 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. the indictment shows that the defendant is criminally guilty of inflicting the public injury alleged, it is a good accusation of nuisance. The indictment does not charge that the defendant knowingly or intentionally supplied water of unwholesome or poisonous quality; nor that he poisoned the water, or imparted to it its unwholesome quality; nor that the same was done by his agents or servants. The defendant may, therefore, have done all that is alleged, and yet have been guilty of no known or intentional wrong. Can it be that upon such facts, the defendant is criminally guilty. "The theory of the law is that a criminal intent is a necessary ingredient of every indictable offense. The maxim is, actio non facit reum, nisi mens sit rea. It is not necessary, in all cases, either to aver or prove the guilty intent; and the influence of legal presumptions may, sometimes, be such, that the legal imputation of a guilty intent may be made in contravention of the fact, as for instance, the presumption that every one knows the law. Where the gist of the offense is neglect or carelessness, it would, as a general rule, be a solecism to speak of a guilty knowledge, since the neglect itself usually evidences the guilty mind; and the principle has been carried in some cases to the extent of making one criminally responsible for not using the proper precaution to prevent the injurious acts of his servant. On this principle rest the decisions, where the servant rendered bread unwholesome by the improper use of the ingredients; where the superintendent of a gas company corrupted the water of the river Thames, by conveying into it deleterious gases and fluids; where the engineer of a railroad neglected to ring the bell, or blow the whistle, at the crossing of a street; where the owner of a river caused detriment to neighboring lands by neglecting to sewer it; were a corporation neglected to repair sea walls, in violation of its charter; and where other neglects of like character have been committed. But this principle does not apply here, because the charge against the defendant is really an act committed, and not the omission or negligent performance of an act. Neglecting to supply good and wholesome water, and supplying unwholesome and poisonous water, can not be tortured into a simple charge of neglect. As well might it be said, that he who administers poison, dissolved in water, is simply guilty of neglecting to administer pure water; or that he who sells poisoned bread, is simply guilty of neglecting to sell wholesome bread. Such sophistry would convert every positive act into a neglect. The poisonous quality of the water certainly may have been the result of some negligence or carelessness, in the choice or arrangement of the instruments employed in supplying it; but such is not the charge, and we can not aid the indictment by an inference of it. "It is a received principle, also, that where the statement of the act itself includes a knowledge of the illegality of the act, no averment or knowledge or bad intent is necessary.' 2 'The law presumes that every person intends to do that which he does.' Hence, whenever one does an act legally wrong in itself, the law presumes the intent to do that act; the act of itself evidences the illegal intent. The doing of an act in its nature illegal-illegal without any extrinsic qualification of itself evidences the criminal intent. But such is 1 Vermont v. Central Railroad, 28 Vt. 583; Rex v. Medley, 6 C. & P. 292; Henry v. Mayor of Lime, 5 Bing. 91; s. c. 5 B. & Ad. 77; s. c. 8 N. R. 690; 1 Bish. Cr. L. 230, 231; Whart. Am. Cr. L. 10, 11. 2 Whart. Am. Cr. L. 297; Com. v. Stout, 7 B. Mon. 247; Com. v. Elwell, 2 Metc. 190. 31 Bish. Cr. L. 248. not the character of the act charged here. The furnishing of poisoned water is is not of itself a crime. The criminality of the act depends upon the question, whether it was furnished with a knowledge of the poisonous quality; knowledge is an ingredient of the offense, and must be averred. Accordingly, where one is indicted for selling an obscene book, or for carrying off a slave, or for an indecent exposure of the person, or for keeping and suffering to go at large a dog of ferocious and furious nature, or for bringing into a public place an animal or person infected with a communicable disease, or for selling unwholesome meat, or for selling a diseased cow, or for uttering a forged note, or for any offense of like character, it is held, that an averment of knowledge is necessary." 2 § 324. Vagrant-Who is a "Vagrant -"Common Prostitute" and "Idle Person " not such Per Se. — In People v. Forbes,3 Catherine Forbes had been committed as a vagrant. On habeas corpus the court examined the case: "The question," said SUTHERLAND, J., "on the face of the commitment arises in this manner: The warrant of commitment, which is under the hand and seal of Mr. Quackenbush, one of the police justices of this city, not only in due form recites the conviction of the prisoner, on competent testimony, of being a vagrant, but proceeds to state and specify the facts, circumstances or conditions which made or constituted the person a vagrant, and on competent proof of which it must be assumed that the committing magistrate determined that the prisoner was a vagrant. "The words of the commitment are: 'Whereas, Catherine Forbes stands charged, and is, on competent testimony made before me, lawfully convicted of being a vagrant in this, to wit, that she is a common prostitute and idle person, of which conviction a lawful record in due form has been made, and it appearing to me, for the cause aforesaid, that she is a vagrant within the the meaning of the statute, etc., I do decide and determine that she be committed,' etc. "The commitment then, on its face, presents this question. Did competent and satisfactory testimony that the prisoner was a common prostitute and idle person, authorize her conviction and commitment as a vagrant? There was no such common-law offense or crime as vagrancy and idleness. By certain statutes, all persons coming within a certain description declared and defined by the statutes, are declared to be vagrants, and provision is made for their trial, conviction and imprisonment. We have two such statutes. By the Revised Statutes, all idle persons, who, not having any visible means to sustain themselves, live without employment; all persons wandering about and lodging in taverns, groceries, or beer-houses, outhouses or market places, sheds or barns, or in the open air, and not giving a good account of themselves; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the streets, highways or other public places to beg or receive alms, shall be deemed vagrants. Common prostitutes, as such, are not named in this statute, and although they may be, and are, perhaps, most likely to be, or to become vagrants within the description of the statute, yet it is plain if a 1 Whart. Am. Cr. L. 297; State v. Brown, 2 Speers, 129. 22 B. & H. Ld. Cr. Cas. 6, 551; Whart. Am. Cr. L. 2396; Whart. Prec. of Indict. 716, 688, 718, 759, 762, 763, 768; 3 Archb. Cr. Pl. 609-644; 3 Chit. 643; Duncan v. State. 7 Humph. 159; Brig. William Gray, 1 Paine, 16; Com. v. Stout, 7 B. Mon. 247; Rex v. Watts, 2 Esp. 675. 3 4 Park. 611 (1860). 4 2 Rev. Stats. 879, (5th ed.) common prostitute is lawfully convicted of being a vagrant under this statute, she must be so convicted not merely on her confession, but on competent testimony that she is a common prostitute or an idle person. This statute does not declare common prostitutes as a class or by name to be vagrants, nor does it declare all idle persons to be vagrants, but only such idle persons as live without employment, and yet have no means to maintain themselves. By an act passed January 23, 1833, which, from its title and provision, would appear to be confined in its operations to the city of New York, all common prostitutes who have no lawful employment whereby to maintain themselves,' are declared vagrants. It is presumed that the prisoner, Catherine Forbes, was arrested and convicted under this act; but by this act common prostitution is neither defined nor declared to be a crime. By this act a certain class or description of common prostitutes are declare to be vagrants. Every word which defines this class, or makes a part of this description, is material and import ant. "The magistrate, in acting under the act, had no right to disregard one word of that description. He has no right, I think, to say that a common prostitute is a vagrant within this act, merely because she is also idle or an idle person, without proof of any other fact or circumstance. To be a vagrant within this act, the common prostitute must be without any lawful employment whereby to maintain herself. These words imply, I think, something more than being idle, or an idle condition, and probably something more even than habitual idleness. They imply, I think a want of any lawful business, occupation or means whereby to sustain herself. It is plain that, substantially, the same words as used in the Revised Statutes in describing the kind or class of idle persons declared to be vagrants, means something more than mere idleness, otherwise the statutes would have declared all idle persons to be vagrants. The object of this act is not to punish common prostitutes as a sin or moral evil, or to reform the individual, but to protect the public against the crimes, poverty, distress or public burdens, which experience has shown common prostitution causes or leads to. "These statutes declaring a certain class or description of persons vagrants, and authorizing their conviction and punishment as such, as well as certain statutes declaring a certain class or description of persons to be disorderly persons, and authorizing their arrest as such, are in fact rather of the nature of public regulations to prevent crime and public charges and burdens, than of the nature of ordinary criminal laws prohibiting and punishing an act or acts as a crime or crimes. If the condition of a person brings him within the description of either of the statutes declaring what persons shall be esteemed vagrants, he may be convicted and imprisoned, whether such a condition is his misfortune or his fault. The individual liberty must yield to the public necessity or the public good; but nothing but public necessity or the public good can justify these statutes, and the summary conviction without a jury,'in derogation of the common law authorized by them. They are constitutional, but should be construed strictly and executed completely in favor of the liberty of the citizen. Their description of persons who shall be deemed vagrants is necessarily vague and uncertain, giving to the magistrate in their execution an almost unchecked opportunity for arbitrary oppression or careless cruelty. The main object or purpose of the statutes should be kept constantly in view, and the magistrate should be careful and see before convicting, that the person |