material, if it is kept as a resort for the purpose of prostitution. It may be a house in the ordinary sense, or it may be a room or rooms in a house,460 may be a canvas tent, or a boat. 461

or it

Letting Premises for Immoral Purpose.—If the owner of a house leases it to another for the purpose of keeping a bawdy house, or afterwards encourages or participates in the keeping of the same, or, by the weight of authority, if he leases it with knowledge that it is to be so kept, he is guilty of a misdemeanor at common law. 462

466. Gaming and Gaming Houses.-Gaming is not an offense at common law; but a common gaming house, to which the public may resort for the purpose of gaming, is a public nuisance, and keeping the same is a misdemeanor at common law.

The act of gaming or gambling is no offense at all unless, as is now the case in most states, it is expressly prohibited and punished by statute. It was not regarded as a misdemeanor at common law.463 Nor is it an offense to permit persons to gamble in a private house, to which others do not resort for such purpose. This is not true, however, of the keeping of a common gaming house. A common gaming house is a house, room, or place kept for the purpose of gaming, and to which persons may and do resort for such purpose, and is a disorderly

464

460 1 Russ. Crimes, 443; Rex v. Peirson, 2 Ld. Raym. 1197; State v. Garity, 46 N. H. 61.

461 Killman v. State, 2 Tex. App. 222, 28 Am. Rep. 432; State v. Mullen, 35 Iowa, 199.

462 Com. v. Harrington, 3 Pick. (Mass.) 26; Smith v. State, 6 Gill (Md.) 425; State v. Williams, 30 N. J. Law, 102; People v. Erwin, 4 Denio (N. Y.) 129; Campbell v. State, 55 Ala. 89; Ross v. Com., 2 B. Mon. (Ky.) 417; State v. Smith, 15 R. I. 24. Contra, in case of merely leasing with knowledge, State v. Wheatley, 4 Lea (Tenn.) 230. 463 State v. Layman, 5 Harr. (Del.) 510; Com. v. Stahl, 7 Allen (Mass.) 304; State v. Mathews, 2 Dev. & B. (N. C.) 424.

464 State v. Mathews, 2 Dev. & B. (N. C.) 424. See, also, Estes v. State, 2 Humph. (Tenn.) 496.

house. To keep such a place is a public nuisance and misdemeanor at common law, not only because of the tendency of such a place to lead to breaches of the peace, but also because of its tendency to encourage idleness and avariciousness, and to corrupt the public morals.465 The purpose for which the house is kept renders it disorderly, and no noise or disturbance is necessary, 466 It has been held that keeping a place for the illegal sale of lottery tickets is not keeping a gaming house, nor a nuisance, 467 and that a telegraph company which furnishes racing news to a common gaming house, which is a nuisance, is not guilty of maintaining a nuisance.467a

Statutes have been enacted in many states for the purpose of suppressing gaming, and these statutes cover and punish many acts which were not punished at common law. The statutes vary very much in the different states. Generally they prohibit and punish gaming, either in particular places, or generally, and in any place.468 And they punish, not only the keeping of a gaming house, but the permitting of gaming, and the exhibition, setting up, or keeping of gaming tables and devices, or particular kinds of tables or devices.469

465 1 Hawk. P. C. c. 75, § 6; Rex. v. Dixon, 10 Mod. 335; Rex v. Medlov, 2 Show. 30; Rex v. Rogier, 1 Barn. & C. 272; U. S. v. Dixon, 4 Cranch, C. C. 107, Fed. Cas. No. 14,970; People v. King, 23 Hun, 148, 83 N. Y. 587, Beale's Cas. 847; Vanderworker v. State, 13 Ark. 700; State v. Haines, 30 Me. 65; Lord v. State, 16 N. H. 330, 41 Am. Dec. 729; State v. Doon, R. M. Charlt. (Ga.) 1; People v. Jackson, 3 Denio (N. Y.) 101, 45 Am. Dec. 449, Beale's Cas. 121; Com. v. Western Union Tel. Co., 112 Ky. 355, 67 S. W. 59, 99 Am. St. Rep. 299; Thrower v. State, 117 Ga. 753, 45 S. E. 126.

466 State v. Doon, R. M. Charlt. (Ga.) 1.

467 People v. Jackson, 3 Denio (N. Y.) 101, 45 Am. Dec. 449, Beale's Cas. 121.

467a Com. v. Western Union Tel. Co., 112 Ky. 355, 67 S. W. 59, 99 Am. St. Rep. 299.

468 See Am. & Eng. Enc. Law (2d Ed.) tit. "Gaming."

469 See Id. tit. "Gaming Houses."

467. Obscene Libels.-An obscene libel is an obscene writing, book, or print. To publish such a libel, or otherwise expose the same to public view, is a public nuisance, and a misdemeanor at common law.

To publish any obscene writing obscene writing or print, or any book containing obscene matter, by selling or exhibiting the same, or to otherwise expose it to the public view, is clearly a public nuisance, because of its tendency to corrupt public morals, and to shock the public sense of decency, and it is well settled that it is indictable as a misdemeanor at common law.4 470 "The test of obscenity," said Chief Justice Cockburn in an English case, "is this: Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences."471 Depositing obscene matter in the mails is expressly punished by an act of congress.471a On an indictment for publishing an obscene libel, or for depositing obscene matter in the mails, it is no defense for the accused to say that he was actuated by a good motive, as by the desire to correct evils and abuses in sexual intercourse.472

468. Obscene, Indecent, or Disgusting Exhibitions.-Any obscene or indecent exhibition in public, or any exhibition which, though not obscene or indecent, is so disgusting as to be offensive, is a misdemeanor at common law.

Obscene and indecent exhibitions, which tend to corrupt public morals, or to shock the public sense of decency, are clearly public nuisances, and indictable at common law. This

470 Reg. v. Curl, 2 Strange, 788; Reg. v. Hicklin, L. R. 3 Q. B. 360, 11 Cox, C. C. 19; Reg. v. Carlile, 1 Cox, C. C. 229; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632, Beale's Cas. 113; Com. v. Holmes, 17 Mass. 336; McNair v. People, 89 Ill. 441; Bell v. State, 1 Swan (Tenn.) 42.

471 Reg. v. Hicklin, L. R. 3 Q. B. 360, 11 Cox, C. C. 19. 471a Rev. St. § 3893; U. S. v. Wyatt, 122 Fed. 316.

472 U. S. v. Harmon, 45 Fed. 414, Beale's Cas. 180.

474

is true, for example, of obscene and indecent tableaux and theatrical performances, obscene and indecent pictures, figures, and the like.473 On the same principle, it is a misdemeanor to let a stallion to mares in a street or other public place. An exhibition may also be a nuisance because of its disgusting nature, though it may not be obscene or indecent. Thus, where a herbalist publicly exposed in his shop on a highway a picture of a man naked to the waist, and covered with eruptive sores, it was held that an indictment for nuisance would lie because of the disgusting and offensive nature of the exhibition, although there was nothing immoral or indecent in the picture, and although the motive in exhibiting it was innocent.475

469. Indecent Exposure.-Indecent exposure of the person to public view, if intentional, or even when due to negligence, is a public nuisance and a misdemeanor at common law.476

To render indecent exposure a public nuisance, the exposure must be in a public place, or else it must be in such a place that a number of persons may be offended by it.77 To indecently expose the person to one person only in private is not indictable unless made so by statute,478 though if the exposure is made

473 Reg. v. Saunders, 1 Q. B. Div. 15, 13 Cox, C. C. 116; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632, Beale's Cas. 113; Pike v. Com., 2 Duv. (Ky.) 89.

474 Crane v. State, 3 Ind. 193.

475 Reg. v. Grey, 4 Fost. & F. 73.

476 Rex v. Sydlye, 1 Keb. 620, 10 St. Tr. Ap. 93; Reg. v. Thallman, Leigh & C. 326, 9 Cox, C. C. 388; Reg. v. Reed, 12 Cox, C. C. 1, Beale's Cas. 369; Reg. v. Harris, L. R. 1 C. C. 282, 11 Cox, C. C. 659; Com. v. Haynes, 2 Gray (Mass.) 72; State v. Roper, 1 Dev. & B. (N. C.) 208; State v. Rose, 32 Mo. 560; Ardery v. State, 56 Ind. 328; Britain v. State, 3 Humph. (22 Tenn.) 203; Com. v. Spratt, 14 Phila. (Pa.) 365. Cf. Reg. v. Watson, 2 Cox, C. C. 376.

477 Reg. v. Thallman, Leigh & C. 326, 9 Cox, C. C. 388; Reg. v. Holmes, Dears. C. C. 207, 6 Cox, C. C. 216; Reg. v. Harris, L. R. 1 C. C. 282, 11 Cox, C. C. 659; Lockhart v. State, 116 Ga. 557, 42 S. E. 781; Morris v. State, 109 Ga. 351, 34 S. E. 577.

478 Reg. v. Webb, 1 Den. C. C. 338, 3 Cox, C. C. 183; Reg. v. Farrell, 9 Cox, C. C. 446; State v. Millard, 18 Vt. 574.

publicly the fact that only one person saw it is immaterial.478a As was shown in a previous chapter, persons who bathe naked in the sea, near a public road, along which women pass, and in sight of women so passing, are guilty of a public nuisance, and, on an indictment therefor, it is no offense to show a custom to bathe there, though it may have existed for half a century without complaint..479

470. Obscene and Profane Language.—It is a public nuisance and a misdemeanor at common law to publicly utter obscene language, or to profanely curse or swear in public.

Both obscene language and profane cursing or swearing are punished at common law when the offense is committed in public, and in such a way as to constitute an annoyance to the public, 480 but not when the language is uttered in private, for in the latter case, though wrong, it is not a public nuisance. 481 It seems, also, that a single act of profane swearing or cursing is not indictable unless there are aggravating circumstances. 482

471. Blasphemy.-Blasphemy is the malicious reviling of God or the Christian religion. It is a misdemeanor at common law.

478a State v. Martin (Iowa) 101 N. W. 637.

479 Reg. v. Reed, 12 Cox, C. C. 1, Beale's Cas. 369; ante, § 84. And see Rex v. Crunden, 2 Camp. 89.

480 State v. Appling, 25 Mo. 315, 69 Am. Dec. 469; Barker v. Com., 19 Pa. 412; Bell v. State, 1 Swan (Tenn.) 42; State v. Graham, 3 Sneed (Tenn.) 134; Goree v. State, 71 Ala. 7; State v. Ellar, 1 Dev. (N. C.) 267; State v. Powell, 70 N. C. 67; State v. Brewington, 84 N. C. 783; State v. Chrisp, 85 N. C. 528, 39 Am. Rep. 713; Young v. State, 10 Lea (Tenn.) 165; State v. Archibald, 59 Vt. 548, 9 Atl. 362, 59 Am. Rep. 755.

481 See State v. Brewington, 84 N. C. 783; Ex parte Delaney, 43 Cal. 478; Com. v. Linn, 158 Pa. 22, 27 Atl. 843; Young v. State, 10 Lea (Tenn.) 165; Gaines v. State, 7 Lea (Tenn.) 410, 40 Am. Rep. 64; State v. Pepper, 68 N. C. 259, 12 Am. Rep. 637.

Delivering a written communication to a female is not using obscene, vulgar or profane language in her presence. Williams v. State,

117 Ga. 13, 43 S. E. 436.

482 See the cases cited in the note preceding.