tion to each of the two inhabitants.(7) The person keeping such bawdy-house, &c., is also to be bound over to appear at the sessions or assizes.(m) Sec. 8, reciting that by reason of the many subtile and crafty contrivances of persons keeping bawdy-houses, &c., it is difficult to prove who is the real owner or keeper, enacts, "that any person who shall appear, act, or behave as master or mistress, or as the person having the care, government, or management, of any *bawdy-house, gaming-house, or other disorderly house, shall be deemed and taken to be the keeper thereof, and shall be liable to be prosecuted and [*447

punished as such, notwithstanding he or she shall not, in fact, be the real owner or keeper thereof." Sec. 9, any person may give evidence upon such prosecution, though an inhabitant of the parish or place, and though he may have entered into the before-mentioned recognizance. Sec. 10, no indictment shall be removed by certiorari, but shall be tried at the same sessions or assizes where it shall have been preferred (unless the Court shall think proper, upon cause shown, to adjourn the same), notwithstanding any such writ or allowance. This clause has been decided not to restrain the crown from removing the indictment by certiorari; there being nothing in the Act to show that the legislature intended that the crown should be bound by it.(n) And where an indictment for keeping a disorderly house has been removed from the sessions into the Central Criminal Court under the 4 & 5 Will. 4, c. 36, s. 16, either by the prosecutor or defendant, the opposite party may remove it into the Court of Queen's Bench. (0) But the power of that Court to grant a certiorari at the defendant's instance to remove an indictment for keeping such a house found at the Middlesex Sessions, is taken away by the 25 Geo. 2, c. 36, s. 10, whether the prosecution be under that Act or in the ordinary course.(p) Any number of persons may be included in the same indictment for keeping different disorderly houses, stating that they "severally" kept, &c., such houses. (q) It seems that it is necessary to state where the house is situate, and the time, so as to make a particular statement of the offence, which is the keeping of the house.(r) But particular facts need not be stated; and though the charge is thus general, yet at the trial evidence may be given of particular facts, and of the particular time of doing them.(s) It is not necessary to prove who frequents the house, for that may be impossible: but if any unknown persons are proved to be there behaving disorderly, it is sufficient to support the indictment.(t)

The 8 & 9 Vict. c. 109, s. 2, declares and enacts that, "in default of other evidence proving any house or place to be a common gaming-house, it shall be sufficient, in support of the allegation in any indictment or information that any house or place is a common gaming-house, to prove that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favorable to all the players, including among the players the banker or other person by whom the game is managed, or *against [*448 whom the other players stake, play, or bet; and every such house or place shall be deemed a common gaming-house such as is contrary to law, and forbidden

(1) Sec. 4. See Burgess v. Boetefeur, 7 M. & G. 481 (49 E. C. L. R.), an action on this section. (m) See the 58 Geo. 3, c. 70, s. 7, by which a copy of the notice served on the constable is also to be served on one of the overseers, and the overseers may enter into a recognizance, and prosecute instead of the constable.

(n) Rex v. Davies, 5 T. & R 626.

(0) Reg. v. Brier, 14 Q. B. 568 (68 E. C. L. R.).

(p) Reg. v. Sanders, 9 Q. B. 235 (58 E. C. L. R.).

(g) 2 Hale 174, where it is said, "It is common experience at this day that twenty persons may be indicted for keeping disorderly houses or bawdy-houses; and they are daily convicted upon such indictments, for the word separaliter makes them several indictments." And in Rex v. Kingston and others, 8 East 41, it was held that it is no objection on demurrer that several different defendants are charged in different counts of an indictment for offences of the same nature; though it may be a ground for application to the discretion of the Court to quash the indictment.

(r) By Buller, J., in J'Anson v. Stuart, 1 T. R. 754.

(8) By Lord Hardwicke, in Clarke v. Periam, 2 Atk. 339. (t) J'Anson v. Stuart, 1 T. R. 754, by Buller, J.

to be kept by the said Act of King Henry the Eighth, and by all other Acts containing any provision against unlawful games or gaming-houses." (u)

By the 16 & 17 Vict. c. 119, s. 1, "No house, office, room, or other place shall be opened, kept, or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by or acting for or on behalf of such owner, occupier, or keeper, or person using the same, or of any person having the care or management or in any manner conducting the business thereof betting with persons resorting thereto; or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, keeper, or person as aforesaid as or for the consideration for any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse race, (uu) or other race, fight, game, sport, or exercise, or as or for the consideration for securing the paying or giving by some other person of any money or valuable thing on any such event or contingency as aforesaid; and every house, office, room, or other place opened, kept, or used for the purposes aforesaid, or any of them, is hereby declared to be a common nuisance and contrary to law."

Sec. 2. "Every house, room, office, or place opened, kept, or used for the purposes aforesaid, or any of them, shall be taken and deemed to be a common gaminghouse within the meaning of an Act of the session holden in the eighth and ninth years of Her Majesty, chapter one hundred and nine, "to amend the law concerning Games and Wagers."(v)

The 17 & 18 Vict. c. 38, contains additional provisions for the suppression of gaming-houses, and sec. 1 imposes penalties on persons obstructing the entry of constables into suspected houses.

Sec. 2. "Where any constable or officer authorized as aforesaid to enter any house. room, or place is wilfully prevented from or obstructed or delayed in entering the same or any part thereof, or where any external or internal door of or means of access to any such house, room, or place so authorized to be entered shall be found to be fitted or provided with any bolt, bar, chain, or any means or contrivance for the purpose of preventing, delaying, or obstructing the entry into the same or any part thereof of any constable or officer authorized as aforesaid, or for giving an alarm in case of such entry, or if any such house, room, or place is found fitted or provided with any means or contrivance for unlawful gaming, or with any *449] means or contrivance for concealing, *removing, or destroying any instruments of gaming, it shall be evidence, until the contrary be made to appear, that such house, room, or place is used as a common gaming-house within the meaning of this Act and of the former Acts relating to gaming, and that the persons found therein were unlawfully playing therein." (w)

Upon an indictment for keeping two bawdy-houses, the evidence, in addition to the proof of the nature of the houses, was that the defendant owned the houses, which he let to weekly tenants, and that he had been repeatedly remonstrated with as to the manner in which the houses were conducted, and called upon to interfere so as to abate the nuisance; of these warnings he took no notice, and some months

(u) The Act also contains provisions for searching houses where gaming is suspected to be carried on, and for the summary conviction of owners, keepers, and managers of gaming-houses, &c., &c.

(uu) See Reg. v. Crawshaw, Bell C. C. 303.

(v) Sec. 3 makes the owner, occupier, &c., of a house, &c., used for the purposes mentioned in the previous sections liable to be summarily convicted. Sec. 4 makes the owner, occupier, &c., of any such house, &c., who receives any money as a deposit on any bet on condition of paying any money on the happening of any event liable to be summarily convicted. Sec. 7 imposes a penalty on persons exhibiting placards or advertising betting houses. Sec. 11 empowers justices to authorize houses to be searched; and sec. 12 empowers commissioners of police to do the same. See Doggett v. Catterns, 17 C. B. N. S. 669 (112 E. C. L. R.), as to the meaning of "other place" in 16 & 17 Vict. c. 119, s. 1; and see the same case in error where the decision of the C. P. was reversed, 12 Law T. 355. (w) Sec. 3 imposes a penalty on any person apprehended for giving a false name or address. Sec. 4 imposes penalties on persons keeping gaming-houses. Sec. 5 enables justices to examine on oath any persons who have been apprehended. And sec. 6 exonerates persons so examined, who make a full discovery, from all penalties.

before the prosecution he was served with a notice to the like effect; he, however, took no steps to stop the nuisance, but continued to go to the houses, and receive the rent every week; but it was not proved that the defendant obtained any additional rent by reason of the nature of the occupation; and it was held that the defendant was not really the keeper of the bawdy-houses in point of law but was simply the owner of the houses, letting them to other persons who used them for an immoral purpose.(x)

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A recorder of a borough has jurisdiction to try an indictment under the 25 Geo. 2, c. 36, s. 5, for keeping a disorderly house within the borough.(y)

The punishment for keeping a common bawdy-house, a common gambling-house, or a common ill-governed and disorderly house, is fine, or imprisonment, or both, and by the 3 Geo. 4, c. 114, hard labor in addition to such imprisonment.(z)

On an indictment for keeping a bawdy-house, it appeared that the house was inhabited entirely by women, who lived by prostitution openly carried on, and whose conduct was often riotous and grossly indecent, so as to be a scandal to the neighborhood. The defendant owned the house, but occupied no part of it, did not keep the key, and had no right of entry. The apartments were let to weekly tenants, who occupied separately, under distinct takings, each lodger having her own room, her own key, and a door opening into the street, or into a passage communicating with the street. The defendant had nothing whatever to do with the management of the house (if indeed a house thus divided into separate holdings can be said to be managed as a house), or of any part of it. He received no share of the earnings of the women, nor did he derive any benefit therefrom, except so far as he may be said to have done so incidentally, from their ability to pay their rent being thereby increased. He had no control over the tenants, except such as might arise indirectly from his power as landlord to determine the tenancy from one week to another. He only went to the house to collect the weekly rent from the different lodgers, or, when being pressed by the complaints of the neighbors (as sometimes happened), to endeavor to prevail on the inmates to be more orderly in their behavior. But it was abundantly clear that he knew the use to which the apartments were applied by the several lodgers, and that he let the apartments with a full knowledge that they would be applied to the purposes of prostitution, and with a perfect assent on his part to their being so applied. Upon a case reserved upon the question whether, under the circumstances, the defendant could be considered as having "kept" the house in the legal sense of that term, it was held that he could not. The house was not kept by him. He had no power to admit any one whom he desired to enter the house, or to exclude any one whom he wished not to enter. In fact, he was not the keeper of the house. (zz) With all deference to the learned judges, it may well be doubted whether this decision, as well as Reg. v. Barrett, be not erroneous. The contract in each case was clearly illegal, as it is plain that the letting was for the purposes of prostitution. (aa) That being so, the defendant was in point of law the occupier of the house, and the residents in the house merely his agents or servants in carrying on the purposes in question. But even if they were the occupiers, they were guilty of the offence, and the part he took would have made him an accessory before the fact, if the offence were felony, and it made him a principal, as it was only a misdemeanor, and he might have been convicted on an indictment charging him with keeping the house. (b) Besides, the law is clear that, if a man lets a house with a nuisance upon it, he is indictable, and à fortiori if he lets a house for the very purpose that a nuisance may be created by its use.

In general, all open lewdness grossly scandalous is punishable by indictment at

(z) Reg. v. Barrett, 9 Cox C. C. 255; s. c. L. & C. 263. See post, p. 455.

(y) Reg. v. Charles, L. & C. 90.

(z) See the section, ante, p. 405.

(zz) Reg. v. Stannard, L. & C. 349.

(aa) Crisp v. Churchill, 1 Selw. N. P. 68, 7th edit.; Girarday v. Richardson, 1 Esp. N. P. C. 13, Lord Kenyon, C. J.

(bb) See my note, p. 128 of Vol. I.

the common law and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor. (a)1

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Therefore any unlawful exposure of the private parts of an individual in a public place and in the sight of divers persons is indictable. In one case it was held that in order to constitute such an offence, it was not essential that the exposure should actually be seen by more than one person, if it were so made that it might be seen by other persons if they had looked in that direction. A French master was tried on an indictment for indecently exposing his person, and it appeared that he was seen from an opposite window by a maid-servant, but there was no evidence that any one in the street saw him, but only that persons going along the street might have seen him; Parke, B., directed the jury to consider whether he was in such a situation that the *passers by in the street could have seen him had they *450] happened to look, and if they were of that opinion to find him guilty.(b) In order, however, to render a person indictable for indecently exposing his person, it is not sufficient that he expose his person to one female only. The indictment charged that the prisoner in a certain public and open place, called Paddington Churchyard, in the sight and to the view of Lydia C., did wilfully expose his private parts; and the Court of Queen's Bench arrested the judgment, on the ground that the nuisance must be public, that is to the injury or offence of several.(c) So where an indictment charged that the prisoner in a certain public place, within a certain alehouse, indecently did expose his private parts in the presence of Mary A., and of divers other the liege subjects of the Queen, and the prisoner had conducted himself in an offensive manner in the public passage from the entrance door of the public-house to the bar, but not amounting to an indecent exposure, and whilst so doing several persons passed to and fro, and he then took out and exposed his private parts to Mary A.; but there was no one in sight but herself at that time; it was held that, assuming the indictment to be sufficient, the averment respecting "divers others" was material, and was not proved, as the exposure was only proved to have been made in the presence of one person.(d)

(a) 1 Hawk. P. C. c. 5, s. 4; Burn's Just. tit. Lewdness; 4 Blac. Com. 65, (n); 1 East P. C. c. 1, s. 1. See 5 Geo. 4, c. 85, s. 4, and 1 & 2 Vict. c. 38, which make persons guilty of the indecent exposure of obscene prints, pictures, wounds, deformities, &c., punishable as rogues and vagabonds.

(b) Rex v. Rouverard, cited in Reg. v. Webb, infra. Query, whether this case be not shaken by that and subsequent cases. And yet it seems to rest on very sound reason. Suppose a man exposes himself in a window facing a street, whilst there are a number of females there who might see him, with intent to insult them, is he guilty of no offence because they happen not to see him? To hold that he is not, is to make,the offence depend on a mere accident over which the offender has no control, instead of on the act and guilty intent of the offender himself.

(c) Reg. v. Watson, 2 Cox C. C. 376.

(d) Reg. v. Webb, 1 Den. C. C. 338; 2 C. & K. 933 (61 E. C. L. R.). No notice was taken of the question whether the place was a public place. The indictment alleged the exposure in the presence of M. A. and divers others," &c., and the judges doubted whether it was not bad for not adding "in their view," and also whether "divers others" was sufficient.

1 State v. Avery, 7 Conn. Rep. 267. See a case of indictment for frequenting houses of ill-fame: Brooks v. State, 2 Yerger 482. In a prosecution for open and notorious lewdness, it need not be proved to have taken place in the street or under the immediate observation of strangers. It is enough if the parties lived together unmarried, and that fact was generally known throughout the neighborhood: Grishan v. State, 2 Yerg. 589; contra, Comm. v. Catlin, 1 Mass. 8. A woman cannot be indicted for keeping a bawdy. house merely because she is unchaste, lives by herself, and habitually admits one or many to an illicit cohabitation with her: State v. Evans, 5 Ired. Rep. 603. Quere. Is adultery or fornication indictable as a common law offence in this country, except in cases of open lewdness, amounting to nuisance? Comm. v. State, 16 Ark. 566. Public obscene language is indictable: State v. Appling, 25 Mo. 315. See contra, McMakins v. State, 10 Ind. 140. Profane swearing and cursing in public is indictable as a public nuisance: State v. Graham, 3 Sneed 134. Exhibiting stud horses in a town is a nuisance: Nolin v. Mayor of Franklin, 4 Yerg. 163. Whatever act openly outrages decency and is injurious to public morals, is a misdemeanor at common law, and indictable as such: State v. Rose, 32 Mo. 560.

But where an exposure was charged on a certain public common in the presence and sight of divers persons, and the prisoners had committed fornication in open day on the said common; but there was no evidence that it was committed within the sight of any one except the witness; but it could have been seen without difficulty by other persons on the common, and the case did not state that there were any other persons on the common; the judges, after argument, differed in opinion, and no judgment was delivered.(e)

Where an indictment charged the prisoners with an indecent exposure in a public place called Farringdon Market, and it was proved that the place in question was an enclosure of Portland stone, with divisions or boxes like the urinals at railway stations, and open to the public for certain proper purposes, but otherwise enclosed, and there was an aperture in the stone-work to enable persons to look through and watch the proceedings inside; it was held that, although the place was in Farringdon Market, it was not a public place for the purpose of this indictment.(ƒ) But where a passenger in a public omnibus for hire exposed his person for a considerable distance whilst the omnibus was passing along a street in the presence of three or four females who were *passengers therein, and saw such exposure, it was held that this was a public place.(g) [*451 On an indictment for indecent exposure, it appeared that the prisoner, while several female servants of a club-house were going to bed, exposed himself on the roof of a house exactly opposite the window of the room where the females were. On the following night the prisoner again exposed himself in a most indecent manner, remaining on the roof about ten minutes. The head waiter and a policeman were sent for, both of whom saw the exposure, making, with five females, seven persons before whom on this occasion the exposure took place. The house out of which the prisoner came, as well as the club, were situate in public streets, but his acts could not be seen by persons passing along the streets, but they could be seen from the back windows of houses in these streets. Upon a case reserved, it was held that there was an abundant publicity in this case.(gg)

Where an indictment for indecent exposure alleged the offence to have been committed on a certain public and common highway, it was held, on a case reserved in Ireland, that evidence that it was committed on a piece of land near the highway did not support the indictment. And a count having been amended so as to state the offence to have been committed "on a place in view of a public highway," and there being no evidence that any one could have seen the prisoner except one female, it was held that no offence was proved; for an exposure seen by one person only, and being capable of being seen by one person only, is not an offence at common law; but if the prisoner had been seen by one person only, and there had been evidence that others might have seen him, the case would have been different (hh) No opinion was expressed as to the propriety of the amendment.

Where an indictment alleged that the two defendants in a certain open and public place called Kew Gardens, frequented by divers of the liege subjects, unlawfully did meet together for the purpose and with the intent of committing with each other openly, lewdly, and indecently in the said public place, divers nasty, wicked, filthy, lewd, beastly, unnatural and sodomitical practices, and then unlawfully, wickedly, openly, lewdly, and indecently did commit with each other, in the

(e) Reg. v. Elliott, L. & C. 103.

(f) Reg. v. Orchard, 3 Cox C. C. 248, Cresswell and Erle, JJ.

(g) Reg. v. Holmes, Dears. C. C. 207. On an indictment for indecent exposure in a certain room in a dwelling-house, it appeared that the prisoners had gone into a parlor in a public-house, and committed the acts alleged, and that a maid-servant had witnessed what was done through the window of another room, and had gone for assistance, and in consequence of her representations a policeman and another witness went, and they also saw sufficient to constitute the crime. The servant was not called as a witness; and the Recorder left it to the jury whether this was a place in which such practices occurring they were likely to be witnessed by others, and there was a conviction: Reg. v. Bunyan, 1 Cox C. C. 74. This case has never been cited in any subsequent case, and seems very questionable.

(99) Reg. v. Thallman, L. & C. 326.

(hh) Reg. v. Farrell, 9 Cox C. C. 446.