v.
J. Millard
The opinion of the court was delivered by
In this cáse the respondent excepted to the charge of the court, and also to their decision, in overruling the motion in arrest; on both which points we think the decision was correct.
The 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 behaviour, &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 court to state what particular conduct will constitute the offence. 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 public exposure of himself to a female, in the manner this respondent did, with a view.to excite unchaste feelings and passions in her and to induce her to yield to his wishes, is lewd, and is gross lewdness, calculated to outrage the[*578] feelings of the person, to whom he thus exposed himself, and to show, that all sense of decency, chastity, or propriety of conduct, was wanting in him, and that he was a proper subject for the animadversion of criminal jurisprudence.
That this lewdness was open, — which, under this statute, must be considered as undisguised, not concealed, and opposite to private, concealed, and unseen, — is also evident. There was no desire, or wish, for concealment; and, so far as the female was 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 depend on the number of persons, to whom a person thus exposes himself, whether one, or many. Indeed, the offence, in this case, is more glaring and gross, than in the case of Sir Charles Sedley, [1 Sid. 168, 1 Keb. 620,] or of the man who bathed in a public place. Rex v. Crunden, 2 Camp. 89. In those 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 before 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 he was convicted, which would have been sustained by the same evidence produced against this respondent.
Of the soundness of the decision in Commonwealth v. Catlin, 1 Mass. 8, we have nothing to say, — and only remark, that, in that case, the lewdness was designed to be private, and it was rather accidental, that the offenders were discovered; and in this particular the case is essentially different from the one before us.
No other objections 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.