The opinion of the court was delivered by
In this cáse the respondent excepted to the charge оf the court, and also to their decision, in overruling the motion in arrest; on both which points we think the decision was correct.
Thе statute, — Rev. St. 444, § 8, — provides, that if any man, or woman, married, or unmarried, shall be guilty of open and gross lewdness and lascivious behaviоur, &c., he shall be imprisoned in the common jail not more than two years, or fined not exceeding three hundred dollars. No particular definition is given, by the statute, of what constitutes this crime. The indelicacy of the subject forbids it, and does not require of the сourt to state what particular conduct will constitute the оffence. The common sense of community, as well as the sense of decency, propriety and morality, which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.
That the conduct of the respondent, in this case, was lewd and lascivious is- beyond question. A рublic exposure of himself to a female, in the manner this respondent did, with a view.to excite unchaste feelings and passiоns in her and to induce her to yield to his wishes, is lewd, and is gross lewdness, cаlculated to outrage the
That this lewdness was open, — which, under this statute, must be considered as undisguised, not сoncealed, and opposite to private, cоncealed, and unseen, — is also evident. There was no desirе, or wish, for concealment; and, so far as the female wаs in his view, he exposed himself to her with the intent and design that she should see him thus exposed. The crime cannot be made to deрend on the number of persons, to whom a person thus exposes himself, whether one, or many. Indeed, the offence, in this cаse, is more glaring and gross, than in the case of Sir Charles Sedley, [1 Sid. 168, 1 Kеb. 620,] or of the man who bathed in a public place. Rex v. Crunden, 2 Camp. 89. In thоse cases there was a disregard of decency, without any design to outrage the feelings of any individuals, or to excite any improper desires or feelings in them. In the case beforе ns such motives evidently actuated the respondent.
I am not prepared to say, that the conduct of thetespondent would not have been indictable at common law, notwithstanding the intimation to the contrary in the case of Fowler v. The State, 5 Day 81. There is a precedent of an indictment against one Bennett, in 2 Chit. 41, on which hе was convicted, which would have been sustained by the same еvidence produced against this respondent.
Of the soundness of the decision in Commonwealth v. Catlin,
No other objеctions have been urged in the argument. The indictment, in the second and third counts, has followed the words of the statute. Judgment must be rendered on the verdict, and the respondent sentenced.