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XII. GAMES. $ 2403. Here we touch a point that has heretofore f 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. I
f Ante, $ 1012.
Com. v. Stowell, 9 Metc. 572; Com. v. g See ante, $ 2363, 2366.
Drew, 3 Cush. 279. h See State v. Records, 4 Harring. k People v. Sergeant, 8 Cow. 139; 554; Tanner v. Trustees, 5 Hill (N. Com. v. McDonough, 13 Allen, 581 ; Y.), 121.
though see State v. Layman, 5 Hari State v. Hall, 3 Vroom (N. J.) ring. Del. 510. 158.
I See Walker v. Brewster, 5 Law į 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
$ 2408. Indictment. - It is not enough to use the term "common gaming-house.” The special facts making such a house a nuisance must be averred. p But under a statute making gaming indictable, the particular game need not be proven. And at all events, the names of frequenters need not be specified. r
m Estes v. State, 2 Humph. 496 Carolina act of assembly of 1816, to
n R. v. Medlor, 2 Show. 36 ; State prevent gaming, against a person for v. Haines, 30 Me. 65; Lord v. State, permitting persons to play cards at his 16 N. H. 325; Com. v. Stahl, 7 Allen, house, being a public house, is not 304; State v. Layman, 5 Harring. 510; good, unless it states that the persons Vanderworker v. State, 8 Eng. (13 were playing at such games as were not Ark.) 700.
excepted in the act; and where a cono State v. Doon, R. M. Charlton, 1. viction had taken place on such an inThe following cases are under local dictment, the judgment was arrested. statutes: The actual keeping of a Reynolds v. State, 2 Nott & McC. 365. building furnished with bowling-al- See Bell v. State, 5 Sneed, 509. leys, and suffering persons to resort A conviction which states that a there, for hire, gain, or reward, for keeper of a public house, licensed unthe purpose of playing at bowls, is an der the 9 Geo. 4, c. 61, has been offence within the Massachusetts Rev. "guilty of an offence against the Sts. c. 50, s. 17, whether the person tenor of his license, that is to say, keeping the same does so of his own that he knowingly suffered a certain will, or by the procurement, or as the unlawful game, to wit, the game of agent or hired man of another, and dominos, to be played in his house," whether for his own emolument, or is bad; as the game of dominos is that of another. Com. v. Drew, 3 not itself unlawful, and playing at Cush. 279.
dominos does not necessarily amount Under Rev. Sts. 50, s. 17, it is suf- to " gaming," within the meaning of ficient to allege that the defendant did the license. 22 Law J. Rep. (N. S.) for hire, gain, and reward permit per- M. C. 1; 17 Jur. 501; 1 El. & Bl. 286. sons 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 per- 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, 3 Metc. 130; Com. v. Stowell, 7 Metc. Eng. (13 Ark.) 700; State v. Ames, 572; Com. v. Drew, 3 Cush. 279. See 1 Mo. 372; U. S. v. Ringgold, 5 State v. Records, 4 Harr. 554.
§ 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
Cranch C. C. 378; Com. v. Pray, 13 So, cock-fighting is an unlawful Pick. 359. 6 “ game” or sport; Com. v. Tilton,
9 State v. Dole, 3 Blackf. 294. 8 Met. 232; although game-cocks are so See ante, $ 2389. not implements of gaming, within the s State v. Andrews, 43 Mo. 470. meaning of a statute against " gaming t Com. v. Hopkins, 2 Dana, 420. apparatus, or implements used in un- u See ante, $ 2396. lawful gaming." Coolidge v. Choate, v For forms, see Wh. Prec., as fol11 Metc. 79.
lows: That form of lottery called a “gift (765) Exhibiting scandalous and libelenterprise," by which a merchant or
lous effigies, and thereby collecting tradesman sells his wares for their
a crowd, &c. First count. market value, but, by way of induce- (766) Keeping a house in which ment, gives to each purchaser a ticket, men and women exhibit themwhich entitles him to a chance to win selves naked, &c., as “model arcertain prizes, to be determined after tists." the manner of a lottery, has been held (767) Bathing publicly near public to be common gaming under the Ten
ways and habitations. nessee laws, so as to make all persons (768) Public exposure of naked peraiding or abetting such transaction indictable. Bell v. State, 5 Sneed, 507. (769) Exposing the private parts in See post, $ 2429. The game called an indecent posture. Keno is, in Arkansas, a gambling game, (770) Same, under s. 8, c. 444, Vercovered by the statutes against gam
mont Rev. Stats. First count. Exbling. Trimble v. State, 22 Ark. 355; posure to divers persons, &c. Portis v. State, 27 Ark. 360.
(771) Second count. Exposure in p People v. Jackson, 3 Denio, 101 ; the presence of one Polly P. Frederick v. Com. 4 B. Monr. 7; (772) Third count. Exposure in though see Vanderworker v. State, 8 the presence of Polly P., and divers
01 R. v. Sedley, 10 St. Trials, Ap. R. v. Gallard, 1 Sess. Cas. 231; R. v. 93; 1 Sid. 168; 1 Keb. 620; and see Crunden, 2 Camp. 89; 1 B. & Adol. 933. other persons to the jurors un- (776) Lascivious cohabitation at comknown.
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. wl 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 offence; a and so of an omnibus ; b and of the sea-beach, when visible from inhabited houses ;c and of the roof of a house, visible from other houses. d
mon law. (773) Another form for the same in (777) Lewdness, &c., by a man and
North Carolina, there being no al- woman unlawfully cohabiting and legation of the presence of lookers living together.
(779) Notorious drunkenness. (774) Lewdness and lascivious co- w State v. Roper, 1 Dev. & Bat. habitation in Massachusetts. First 208. count. Lascivious behavior by ly- wl State v. Pepper, 68 N. C. 259.
ing in bed only with a woman. x Com. v. Haynes, 2 Gray R. 72. (775) Second count. Lascivious be
havior, by putting the arms openly ż R. r. Farrell, 9 Cox C. C. 446. about a woman, &c.
Bathing near a public footway, frequented by females, is unlawful, and renders the party so bathing liable to be indicted for exposure. Nor is it any defence that the place has been always used as a resort for bathers; or that the exposure has not been beyond what is necessarily incident to such bathing.e
§ 2412. The intent with which the act was done is a material ingredient in the offence, and is a question of fact for the consideration of the jury, under all the circumstances of the case. It is for the jury to find whether there has been an intentional, wanton, and indecent exposure of the persons of the defendants, at such a time and place, and in such a manner, as to offend against public decency. And a charge which withdraws that question from the consideration of the jury, as a question of fact, is erroneous. f But intent is to be inferred from recklessness.
4. Number of Observers. $ 2413. It has been properly held that if a man indecently expose his person to one person only, this is not an indictable misdemeanor.g It is otherwise if there are other persons in such a situation that they may be witnesses of the exposure. h It is by dwelling on this point that we may reach a solution of an apparent conflict. An intentional and indecent exposure of the person to one individual in private may be indictable as a solici
a R. v. Harris, 11 Cox C. C. 659, 103. Whether an indictment which overruling R. v. Orchard, 3 Cox C. C. charges A. with having “in a certain 248; 20 Eng. Law & Eq. 598. public place, within a certain victual
6 R. v. Holmes, 20 Eng. Law & Eq. ling ale-house," indecently exposed 597 ; Dears. C. C. 207; 6 Cox C. C. his person in the presence of M. A., 216.
the wife of B., and other of the liege c R. v. Crunden, 2 Camp. 89. subjects there, is good — quære. But
d R. v. Thallman, Leigh & C. 326; if it appear that the exposure was to 9 Cox C. C. 388.
M. A., the wife of B., only, the defende R. v. Reed, 12 Cox C. C. 1. ant ought not to be convicted. R. v. f Miller v. People, 5 Barbour, 203. Webb, 2 Car. & K. 933; S. C. 1 Den.
g R. v. Webb, 1 Den. C. C. 338; C. C. 334. 2 Cox C. C. 376; 20 Eng. Law & Eq. h R. v. Farrell, 9 Cox C. C. 446. 599. See R. v. Elliott, Leigh & Cave,