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.

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 accuracy, 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.

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 person, 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. I 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.

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.