Williams v. State.

By a motion for a new trial the appellant also questions the suffi ciency of the evidence to sustain the verdict.

The section of the statute upon which the indictment is based reads as follows, and is found in 2 R. S., 1876, p. 446:

"Sec. 22. Every person who shall be guilty of notorious lewdness, or who shall, in any public place, make any uncovered and indecent exposure of his or their person, upon conviction thereof, shall be fined in any sum not less than ten nor more than one hundred dollars, to which may be added imprisonment for any term not exceeding three months."

The principal objection made to the indictment is, that the words "on a public highway," used therein, are not equivalent to the words "in any public place," as used in the statute.

Long experience has settled the best words to be used in a statute in defining a criminal offense, and it is seldom safe to depart from them in charging an offense in an indictment; yet it is settled law that when other words are used which are clearly equivalent, the indictment will not be insufficient for that reason. The question we are considering, therefore, is, are the words used in the indictment, in defining the offense, clearly the equivalent of those used in the statute?

The history of a country, its topography and condition, enter into the construction of the laws which are made to govern it, and we must notice these facts judicially. We must know the fact that in the State of Indiana, a public highway sometimes ceases to be traveled, and is abandoned, long before it ceases to be legally a public highway, and that often portions of a highway are not used as such for so long a time that they cease to be public places; and indeed, there are occasionally places, owing to their peculiar topog raphy, on public highways constantly used, which become private, and afford even secret places, where the act charged upon the appel lant might have been committed wholly away from public gaze or annoyance. Besides, sometimes public highways are laid out and established legally, through portions of primeval forest and thick underbrush, affording many secret places for "nest-hiding," which remain secure and unbroken, and impenetrable to the public eye, for a long time before such highways are opened practically, and become public places.

The act, to make it criminal, whatever be its morality, must have been committed in some "public place;" and unless we can hold, as a safe rule of law to govern all cases, that the words "on a pub

Williams v. State.

lic highway" are generally the equivalent of the words in a "public place," the indictment must be held insufficient.

The section defining an affray, in the same act, 2 R. S., 1876, p. 459, is as follows:

"Sec. 6. If two or more persons, by agreement, fight in any public place, the person so offending shall be deemed guilty of an affray; be fined not exceeding twenty dollars, or imprisoned not exceeding five days each."

It will be observed, that as to the place in which the act must be committed to make it criminal, the same words are used in defining an affray as those used in defining notorious lewdness. The same construction, then, should be given to the words in both cases.

In the case of State v. Weekly, 29 Ind. 206, which was a prosecution for an affray, it was held that the words "in a certain highway there situate," used in the indictment, were not equivalent to the words in a "public place," used in the statute; and the court, speaking through GREGORY, J., gives some excellent reasons for their opinion, as follows:

“An affray, like public indecency, is an offense exclusively against the public. The parties cannot complain because they have brought the evil upon themselves. The public is injured by the terror produced, and the evil example. The offense consists not in fighting by agreement, but in fighting by agreement in a public place.' There may be a legal highway not a public place, within the meaning of the statute. There may be, by the growth of timber or underbrush, a part of a highway perfectly concealed from public view, and as private as any place in the Commonwealth." See Jennings v. State, 16 Ind. 335; 4 Bl. Com. 65.

It is suggested that there is a difference between the words "in a certain highway," which were considered in the case cited, and the words "on a public highway," which we are now considering. We perceive no legal difference. Every highway is a public highway. In our statute the words are used as convertible terms. 2 R. S.. 1876, p. 316. And there is no practical difference in the meaning of the prepositions in a highway and on a highway, and as they are used in the context in the two cases, they mean the same thing. Nor will the averment that the act was committed in the presence of Scott Harvey and William Lindsey aid the indictment. It might have been done in a very secret place, and yet be in the presence of twc persors. We must hold the indictment insufficient. VOL. XXXI-18

Williams v. State.

The judgment is reversed, the cause remanded, with instructions to sustain the motion to quash the indictment and release the appellant from imprisonment.

Petition for a rehearing overruled.

NOTE BY THE REPORTER.

There has been a good deal of discussion as to what constitutes a "public place" or a "public house," within the statutes against gaming, affrays and indecent

exposure.

The English statute provides that "no house, office, room, or other place shall be opened, kept or used for betting purposes." In Eastwood v. Miller, L. R., 9 Q. B. 440; S. C., 9 Eng. (Moak) 429, the appellant was the occupant of inclosed grounds, into which persons were admitted on payment of a fee, and where a pigeon-shooting match for ten pounds a side, and a foot-race took place, persons betting on the match and the race. Counsel contended that the grounds were not a "place," because not covered by a roof. But the court did not take that view. It might as well be said that the betters were not persons unless they had their hats on. A case was cited where one was convicted, under this statute, of keeping a gaming-table under a tree in Hyde Park. In Bows v. Fenwick, L. R., 9 C. P. 339; S. C., 9 Eng. (Moak) 374, one was indicted, under the same statute, of standing at a race-course, on a stool, under an umbrella, seven or eight feet high, supported by a staff stuck into the ground, and kept up, rain or shine. The umbrella was marked: "G. Bows, Victoria Club, Leeds." A card was exhibited on which were the words: "We pay all bets first past the post." The defendant called out, offering and making bets, and giving tickets for the money. This umbrella was held to be a "place," and the court shut it up. One of the judges conceived that a prize-ring, or a wagon with an awning, would not be a "place," and conceived that the umbrella was, properly speaking, an open tent. In Killman v. State, 2 Tex. Ct. App. 222; S. C., 28 Am. Rep. 432, it was held that a canvas tent may be a "disorderly house."

It was held in Henderson v. State, 59 Ala. 89, that an out-house in the bushes on the edge of field, in the corporate limits of a town, about forty yards from a public road, and near and in a view of a path used by school children and other persons, is a "public place," within the mean. ing of the statute against gaming. So is a barn, 200 yards from a tavern, where many persons are assembled for mustering, and sixty or seventy yards from another barn where the tavern keeper is selling spirits. Farmer v. Commonwealth, 8 Leigh, 741. So is a steamboat carrying passengers and freight. Coleman v. State, 13 Ala. 602. So is an infirmary. Flake v. State, 19 id. 551. So is a shoemaker's shop into which many passed, although a few were excluded dur ing the gaming. Campbell v. State, 17 Ala. 369. And so is an old house formerly used as a jail, on a public square and open to all, and occasionally used by the guards of the new jail. Walker v. Commonwealth, 2 Va. Cas. 515. A bed-room kept locked so that none can enter but by permission, is a public place if accessible to all, by night and day, who wish to indulge in gaming. Smith v. State, 52 Ala. 384.

The house of a keeper of a toll-bridge, consisting of two rooms, in one of which is the office for the transaction of the business of the bridge and where persons were privileged to go to settle for tolls, is a public house. Arnold v. State, 29 Ala. 46. So is the office of a justice of the peace. Burnett v. State, 30 Ala. 19. So where a house has but two rooms, front and back, the front used as a magistrate's office, the back by partners of a dissolved firm for settling their accounts, with an opening between, the back room is a public place. Id. 19. So the back room of a country store, used as a bed room by one of the proprietors who is unmarried. Huffman v. State, 30 Ala. 532. So of a room back of a broker's office, used and occupied in like manner. Wilson v. State, 31 Ala. 371. So of a barber's shop on the first story, the gaming being carried on in a room in the second story, accessible only by an exterior flight of stairs, and used by the barber in daguerrean experiments or as a depository for broken apparatus and chemicals. Moore v. State, 30 Ala. 550. And so of a saddler's shop including a back room situated and accessible in like manner. Bentley v. State, 32 Ala. 596.

A privy belonging to a country school-house, is not, during vacation, a public place within the statute of gaming. McDaniel v. State, 35 Ala. 390. Nor is a spot, surrounded with brush and briers, 200 yards from where a public shooting match is going on. Com. v. Vandine, 6 Gratt

Williams v. State.

689. Nor a room in an out-house within a tavern enclosure, formerly used in connection with the tavern, and a room over which is still so used, but now used independently of the tavern by one who boards there. Purcell v. Commonwealth, 14 Gratt. 679. Nor a hollow 100 yards from a dram shop, not visible therefrom nor from a public road, and not customarily used for gaming. Smith v. State, 23 Ala. 89; Bythword v. State, 20 Ala. 47. Nor is a private house, to which the public are not permitted to go without invitation, made a public place by the presence of eight or ten invited persons. Coleman v. State. 20 Ala. 51. Nor the office of an unmarried physician, where he eats and sleeps, the gaming being at night with closed doors and a few invited friends. Clarke v. State, 12 Ala. 492. Nor a lawyer's office, occupied and used in like manner, although during the session of court. Burdine v. State, 25 Ala. 60. Nor the office of a married physician, adjoining a merchant's counting-room, and occupied at night by another as a sleeping-room, who frequently held invited card parties there. Sherwood v. State, 25 Ala. 78. Nor the back-room used by a register in chancery as a bed-room, adjoining and communicating with bis office, the house having a high fence in the rear, and the persons invited coming in by the back way. Roquemore v. State, 19 Ala. 528. Nor a store-house in a village, late at night, after persons have ceased to come for goods, and the door is locked. Commonwealth v. Feazle, 8 Gratt. 585; Windsor v. Com. 4 Leigh, 680. (But it is a "public house." Skinner v. State, 30 Ala. 524.) Nor is a room made a public place by the mere fact that it adjoins and communicates by an open door with another in which are persons who are not gaming. State v. Lowrie, 43 Tex. 602. A "room in a public court-house" is not necessarily a "public place." Shihagan v. Steele, 9 Tex. 430.

A public omnibus is a "public place" within a statute against indecent exposure of the person. Reg. v. Holmes, 3 Carr. & K. 360. In Reg. v. Orchard, 3 Cox C. C. 248, it was held that a urinal, with boxes or divisions, for the convenience of the public, situated in an open market, was not a public place within the same statute. But the contrary was held in Queen v. Harris, L R., 1 C. C. 282. The court said: "It appears that the urinal was open to the public; that it was in Hyde Park, upon a public foot-path, and that the entrance to it was from that foot-path. I think it was just as much a public place, with respect to that portion of the public who use it, as a public highway. Every place must be more or less screened from view on some side, and the size of an enclosure does not necessarily affect the question whether it is a public place or not." Where one indecently exposed himself on the roof of a house in view from the back windows of several other houses, and was seen by seven persons from one of those windows, but could not be seen from the highway, held, that this was in a public place. Reg. v. Thellman, 1 Leigh & C. 826. The sea-beach, visible from inhabited houses, is a public place. Reg. v. Creusden, 2 Camp. 89. But an indictment charging indecent exposure "in a public place, to wit, a public road," is bad, the publicity having reference to the number of persons rather than the locality. Moffit v. State, 43 Tex. 346.

A field in a forest and one mile from a highway or any other public place, is not a public place, although three persons are present, two of whom engage in an affray. Taylor v. State, 22 Ala. 15. (So held in respect to an indecent exposure in a bar-room, only one other person being present. Reg. v. Webb, 1 Den. C. C. 338. So under the like circumstances in a church-yard. Rex v. Watson, 2 Cox C. C. 376.) But an enclosed lot, thirty yards from the street of a country town, but visible from the street, is a public place within the common-law definition of an affray. Carwile v. State, 35 Ala. 392. The tumult could be heard and its exciting scenes wit. nessed; and persons passing by would be within reach of missiles thrown by the combatants," said the court.

For the purpose of posting notices, houses of public worship, inns. and perhaps in some places, retail shops, are public places. Scammon v. Scammon, 28 N. H. 428; Tidd v. Smith 3 id. 181.

CASES

IN THE

SUPREME COURT

OF

IOWA.

IOWA LUMBER Co. v. FOSTER.

(49 Iowa, 25.)

Corporation-purchasing its own stock.

▲ corporation, with power to purchase "property deemed desirable in the transaction of its business," may purchase its own stock.

A

CTION by a corporation for an accounting and for the surrender

of notes. The defendant Foster alleged, by way of counterclaim, that he bought the plaintiff's stock, to a certain amount, upon the agreement that the plaintiff would purchase it from him on certain conditions which had subsequently been fulfilled. The defendant had judgment below.

Robinson & Lacey and H. B. Fouke, for appellant.

Pollock & Shields, for appellees.

SEEVERS, J. (Omitting a question of practice.)

It is assigned as error that the court erred in finding there was any valid contract to take back Foster's stock, and for rendering judgment for him for the amount found due for said stock. It will be observed that the first portion of this assignment is more in the nature of a complaint that the finding of facts in reference to the stock is not sustained by the testimony, than that there has been any