ÆäÀÌÁö À̹ÌÁö
PDF
ePub

continued, or in any way sanctioned its creation or continuance, he was indictable. x At present, the law, even in New York, is, that such letting or hiring, with a guilty knowledge, makes the landlord indictable as a principal in keeping the house. y If, however, the landlord has absolutely no control, he is not responsible. z

§ 2402. To make a party liable for knowingly permitting his house to be used for the purposes of prostitution, it is said in Iowa to be necessary that he be shown to have done some act, or made some declaration, sufficiently assenting to the premises being so used after he had knowledge of such use. a Mere inactivity, it is said in the same case, or failure to take steps to prosecute, does not make him liable. But, however this may be under the Iowa statute, such acquiescence, it is submitted, after notice, involves a party in the common law offence, in those jurisdictions where this offence is recognized. Clearly is this the case where the lease is renewed (as in cases of leases week by week or month by month) after knowledge by the lessor of the use made by the lessee. Here the lessor supplies the machinery for the maintenance of the nuisance; and according to the views hereinbefore unfolded, is as principal (the offence being a misdemeanor) responsible for such nuisance. So, also, are all persons mixing in the management. Thus it is no defence to an indictment of this class, that the defendant, who is proved to have control of the building, is not the owner, but merely collects the rents as agent for the owner. c

The indictment, when it rests on a lease, ought accurately to specify the date and terms of the lease, and the name of the lessee, or to give an excuse for non-specification. d An omission of the scienter is fatal. e

x People v. Townsend, 3 Hill, 479. See also, to same effect, Ross v. Com. 2 B. Monr. 417.

y People v. Erwin, 4 Denio, 129; but see contra, R. v. Barrett, Leigh & C. 263, a case I think erroneously

decided. In Ohio the offence is indictable by statute. Act of April 11,

1856.

z State v. Williams, 1 Vroom, 102. a State v. Abraham, 6 Iowa, 118.

b See ante, § 2374; R. v. Stannard, L. & C. 349, so far as it conflicts with the principles just stated, cannot be accepted as law.

c Lowenstein v. People, 54 Barbour, 299.

d Com. v. Moore, 11 Cush. 600. Otherwise when no lease is set forth. Smith v. State, 6 Gill, 425.

e State v. Leach, 50 Mo. 535.

XII. GAMES.

§ 2403. Here we touch a point that has heretofore ƒ been incidentally discussed. Are public games to be discouraged and depressed? Much depends on this point on the policy of the community in respect to the physical and martial culture of young men; but much also, when the question of nuisance presents itself, depends on the moral bias of the community. If public sentiment is scandalized by the public exhibition of a particular game, then the public exhibition of such game is a nuisance. But the sentiment thus to be protected must be that of a community, and not that of a few persons, no matter of what prominence and excellence. g Applying this criterion we can understand why decisions as to what public games are nuisances should vary in varying communities.

1. Bowling-alleys.

§ 2404. These, for instance, kept for gain, and with much noise and occasional concourse of idlers, would be nuisances in thickly inhabited and quiet communities; h though generally proof of great habitual disorder should be given. i In Massachusetts, bowling has been held to be an "unlawful game " under Rev. Sts. c. 50, s. 17.j

2. Billiard-rooms.

§ 2405. Unless the betting be such as to attract offensive crowds, billiard-rooms are certainly not nuisances. k

3. Public Spectacles.

§ 2406. These are to be governed by the considerations just named, with this addition, that whatever tends to needlessly collect a crowd of idlers, and block up streets, is from this particular circumstance a nuisance. l

f Ante, § 1012.

g See ante, § 2363, 2366.

h See State v. Records, 4 Harring. 554; Tanner v. Trustees, 5 Hill (N. Y.), 121.

Com. v. Stowell, 9 Metc. 572; Com. v.
Drew, 3 Cush. 279.

k People v. Sergeant, 8 Cow. 139; Com. v. McDonough, 13 Allen, 581; though see State v. Layman, 5 Har

i State v. Hall, 3 Vroom (N. J.) ring. Del. 510.

158.

I See Walker v. Brewster, 5 Law

j Com. v. Goding, 3 Metc. 130; Rep., Eq. 25.

4. Gaming-houses.

§ 2407. What has just been said applies to the generic term "Gaming house." It is not indictable for a person to permit single acts of gaming in his house. m But when gaming is there publicly known to be carried on, and when unwary and inexperienced persons are there enticed and fleeced, then the house becomes a nuisance, and indictable as such, irrespective of any particular statutes. n And a public faro table is, per se, a nui

sance. o

[ocr errors]

66

com

§ 2408. Indictment. It is not enough to use the term mon gaming-house." The special facts making such a house a

m Estes v. State, 2 Humph. 496 n R. v. Medlor, 2 Show. 36; State v. Haines, 30 Me. 65; Lord v. State, 16 N. H. 325; Com. v. Stahl, 7 Allen, 304; State v. Layman, 5 Harring. 510; Vanderworker v. State, 8 Eng. (13 Ark.) 700.

o State v. Doon, R. M. Charlton, 1. The following cases are under local statutes: The actual keeping of a building furnished with bowling-alleys, and suffering persons to resort there, for hire, gain, or reward, for the purpose of playing at bowls, is an offence within the Massachusetts Rev. Sts. c. 50, s. 17, whether the person keeping the same does so of his own will, or by the procurement, or as the agent or hired man of another, and whether for his own emolument, or that of another. Com. v. Drew, 3 Cush. 279.

Carolina act of assembly of 1816, to prevent gaming, against a person for permitting persons to play cards at his house, being a public house, is not good, unless it states that the persons were playing at such games as were not excepted in the act; and where a conviction had taken place on such an indictment, the judgment was arrested. Reynolds v. State, 2 Nott & McC. 365. See Bell v. State, 5 Sneed, 509.

A conviction which states that a keeper of a public house, licensed under the 9 Geo. 4, c. 61, has been "guilty of an offence against the tenor of his license, that is to say, that he knowingly suffered a certain unlawful game, to wit, the game of dominos, to be played in his house," is bad; as the game of dominos is not itself unlawful, and playing at dominos does not necessarily amount to "gaming," within the meaning of the license. 22 Law J. Rep. (N. S.) M. C. 1; 17 Jur. 501; 1 El. & Bl. 286.

Under Rev. Sts. 50, s. 17, it is sufficient to allege that the defendant did for hire, gain, and reward permit persons to resort, &c., for the purpose of In Massachusetts, the game of bowls playing at a certain unlawful game and ninepins has been held to be an mentioned, without alleging that unlawful "game" within the meansons actually did resort there for the ing of the R. S. c. 50, s. 17, which purpose of playing, or did there play, prohibits "billiards, cards, or dice, or at any unlawful game. Com. v. Stow- other unlawful games; " and no betell, 9 Metc. 572. ting or gaming is necessary to make An indictment under the South the game unlawful. Com. v. Goding,

per

nuisance must be averred. p But under a statute making gaming indictable, the particular game need not be proven. q And at all events, the names of frequenters need not be specified. r

§ 2408 a. Evidence. The proof may be in part circumstantial, such as possession and use of implements for gambling. 8 The scienter may be proved by the illicit use of these implements elsewhere. t How the defendant's control is to be proved is elsewhere shown. u

XIII. EXPOSURE OF PERSON. v

§ 2409. An intentional indecent exposure of the person to public view is a nuisance at common law. vl

3 Metc. 130; Com. v. Stowell, 7 Metc. 572; Com. v. Drew, 3 Cush. 279. See State v. Records, 4 Harr. 554.

[ocr errors]

So, cock-fighting is an unlawful 99 game or sport; Com. v. Tilton, 8 Met. 232; although game-cocks are not implements of gaming, within the meaning of a statute against "gaming apparatus, or implements used in unlawful gaming." Coolidge v. Choate, 11 Metc. 79.

That form of lottery called a "gift enterprise," by which a merchant or tradesman sells his wares for their market value, but, by way of inducement, gives to each purchaser a ticket, which entitles him to a chance to win certain prizes, to be determined after the manner of a lottery, has been held to be common gaming under the Tennessee laws, so as to make all persons aiding or abetting such transaction indictable. Bell v. State, 5 Sneed, 507. See post, § 2429. The game called Keno is, in Arkansas, a gambling game, covered by the statutes against gambling. Trimble v. State, 22 Ark. 355; Portis v. State, 27 Ark. 360.

p People v. Jackson, 3 Denio, 101; Frederick v. Com. 4 B. Monr. 7; though see Vanderworker v. State, 8

v R. v. Sedley, 10 St. Trials, Ap. 93; 1 Sid. 168; 1 Keb. 620; and see

Eng. (13 Ark.) 700; State v. Ames,
1 Mo. 372; U. S. v. Ringgold, 5
Cranch C. C. 378; Com. v. Pray, 13
Pick. 359.

q State v. Dole, 3 Blackf. 294.
r See ante, § 2389.

s State v. Andrews, 43 Mo. 470.
t Com. v. Hopkins, 2 Dana, 420.
u See ante, § 2396.

v For forms, see Wh. Prec., as follows:

(765) Exhibiting scandalous and libellous effigies, and thereby collecting a crowd, &c. First count. (766) Keeping a house in which men and women exhibit themselves naked, &c., as "model artists."

(767) Bathing publicly near public ways and habitations.

(768) Public exposure of naked per

[blocks in formation]

1. Indictment.

§ 2410. That the exposure is in a public place, where it can be seen by persons having a right of access to such place, is of the essence of the offence. Whether, however, it is necessary to aver the exposure to be "in the sight of" divers persons, has been doubted. In North Carolina, in a case which has the high authority of Judge Gaston, it was held enough to allege the exposure to be "to public view in a public place;" w but this decision has been subsequently (1873) practically overruled in the same state, it being declared that it should appear that the exposure was in the sight of others. w But it is clearly sufficient to aver an exposure" to the view of " divers persons. Thus in Massachusetts, an indictment for indecent exposure, which alleges that the defendant, devising and intending the morals of the people to debauch and corrupt, at a time and place named, in a certain public building there situate, in the presence of divers citizens, &c., unlawfully, scandalously, and wantonly did expose to the view of said persons present, &c., his body, &c., sufficiently sets forth the offence. x Nor in that state need the indictment conclude "to the common nuisance of all the citizens," &c. y

An indictment charging the offence to have been committed on a highway, is not sustained by evidence that the offence was committed in a place near the highway, though in full view of it. z

2. What is a Public Place.

§ 2411. A urinal, fixed in a market-place, open to the public for the purpose of making urine, and on a public footpath, is "an open and public place," so as to sustain an indictment for this

other persons to the jurors unknown.

(773) Another form for the same in North Carolina, there being no allegation of the presence of lookers

on.

(774) Lewdness and lascivious co-
habitation in Massachusetts. First
count. Lascivious behavior by ly-
ing in bed only with a woman.
(775) Second count. Lascivious be-
havior, by putting the arms openly
about a woman, &c.

(776) Lascivious cohabitation at common law.

(777) Lewdness, &c., by a man and woman unlawfully cohabiting and living together.

(779) Notorious drunkenness.

w State v. Roper, 1 Dev. & Bat. 208.

wl State v. Pepper, 68 N. C. 259. x Com. v. Haynes, 2 Gray R. 72. y Ibid.

R. v. Farrell, 9 Cox C. C. 446.

« ÀÌÀü°è¼Ó »