REG.

V.

HILLMAN.

1863.

The jury then under my direction found a verdict of guilty, and the Court admitted the defendant to bail to appear at a future Sessions to receive sentence (if necessary), and I now pray the opinion of this honourable Court as to whether or not the intention of any other person, besides the defendant himself that the substance should be used to procure a miscarriage, is necessary to —Abortion. constitute the offence with which the defendant was charged. J. W. AUDRY,

Chairman of the Quarter Sessions.

T. W. Saunders for the prisoner.-The 59th section enacts that whosoever shall supply or procure any poison or other noxious thing knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor. This section creates a new offence and contemplates a case only where the procurer and the recipient have the same intent. Here it is found that the woman did not intend to take the poison. The present case is not within the section, and it may be casus omissus.

No counsel appeared for the prosecution.

ERLE, C.J.-The question is, whether or not the intention of any other person besides the defendant himself, that the poison or noxious thing should be used to procure a miscarriage, is necessary to constitute the offence charged under the 24 & 25 Vict. c. 100, s. 59. We are all of opinion that that question must be answered in the negative. The statute is directed against the supplying or procuring of poison or noxious things for the purpose of procuring abortion with the intention that they shall be so employed, and knowing that it is intended that they shall be so employed. The defendant knew what his own intention was, and that was, that the substance procured by him should be employed with intent to procure miscarriage. The case is therefore within the words of the Act. We confine our judgment to the question submitted to us. The conviction will therefore be affirmed. The rest of the Court concurring,

Conviction affirmed.

COURT OF CRIMINAL APPEAL.

November 14, 1863.

(Before ERLE, C.J., WIGHTMAN and WILLIAMS, JJ., MARTIN and BRAMWELL, BB.)

REG. v. GEORGE THALLMAN. (a)

Nuisance-Exposure of person-Public place.

It is sufficient to support an indictment for indecent exposure of the person, if the act is done in a place where a great many people can see it, although that place is not a highway; as where the exposure took place on the roof at the back of a house where it could be seen from the back windows of many neighbouring houses, and was seen by several persons therefrom.

CASE

ASE reserved by the Deputy Assistant Judge at the Middlesex Sessions.

The prisoner was tried before me in the Second Court, at the Middlesex Sessions, on the 25th of August last, on an indictment which charged that he in a certain open and public place, that is to say, on the roof of the dwelling-house of one G. H. Cook, situated in a certain open and public street called Albemarlestreet, in the parish of St. George, Hanover-square, and near the dwelling-houses of divers of the liege subjects of the Queen situate in that parish, and also in and near the said open and public street and common highway called Albemarle-street, and within the sight and view of Elizabeth Aulsebrook and Mary Day, and of many other of the liege subjects of the Queen there residing and dwelling, and along and through the open and public street and common highway there going, returning, passing, and repassing, did unlawfully, wilfully, publicly, and indecently expose his person and private parts naked, and did continue on the roof of the said dwelling-house, and near the dwelling-houses aforesaid, &c., with his person exposed, &c., for the space of twenty minutes, to the great damage and common nuisance of the said Elizabeth Aulsebrook and Mary Day, and of all other the liege subjects of the Queen, then and there being, and then and there

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-law.

REG.

v.

residing and dwelling, and along and through the open and public street and common highway aforesaid going, returning, passing, THALLMAN. and repassing, against the peace, &c.

The prisoner lived as a servant at a house, No. 4 in Albermarle-street, Piccadilly, and on the 31st of July, while several female servants belonging to a club-house were going to bed, about eleven at night, in a room at the back of the house, No. 11 in Stafford-street, the prisoner passed along the roofs of the houses and exposed himself on that of No. 6, Albemarle-street, which was exactly opposite the window of the room where the females were. He was almost entirely naked, and exposed his

person.

They mentioned the circumstance to the other servants, but were scarcely credited.

On the following night the prisoner again appeared, and exposed himself in a most indecent manner, remaining on the roof for about ten minutes.

The head waiter of the club was sent for, and also a policeman, both of whom saw the exposure, making, with five females who were present, seven persons before whom, on this occasion, the exposure took place.

The house out of which the prisoner came, as well as that from which the witnesses saw him, were situated in public streets; but that part of the roofs of the different houses along which the prisoner walked did not face the public street, and his acts could not be seen by persons passing along those streets, but they could be seen from the back windows, not only of houses in Albermarlestreet and Stafford-street, but also from those of several houses in Bond-street.

The prisoner's counsel submitted that the roofs of the houses did not constitute a public place, and that the exposure, in the presence of the different persons as described, did not amount to a public exposure so as to make the prisoner guilty of the common law misdemeanor.

The case was not argued before me; but it was suggested by the counsel on both sides that it should be reserved for the opinion of the Court of Criminal Appeal, and argued there. I consented to that course, being desirous that the point should be settled by competent authority, and I told the jury that, in my opinion, the place and the exposure were sufficiently public to bring the acts of the prisoner within the law, if they should be of opinion that he exposed himself in fact indecently, wilfully, and intentionally.

The jury found him guilty, and the question for the determination of your Lordships is, whether I was right in so ruling. If I was, the verdict is to stand; otherwise not.

The prisoner, not being able to find bail, is in prison, awaiting the decision of your Lordships.

JOSEPH PAYNE,

Deputy Assistant Judge.

1863.

Indecent

exposure.

REG.

v.

THALLMAN.

1863.

Indecent exposure.

Best (Besley with him) for the prisoner. It is submitted that the conviction ought to be quashed. The evidence did not support the averment in the indictment that the exposure occurred "in a certain open and public place." This is an indictment at common law, and the place where the exposure is made must be such as the public have access to. Here the place was not visible to any one passing along the streets. In Sedley's case (1 Sid. 168), the exposure was in a balcony in Covent Garden, in sight and view of persons passing along the street. In Reg. v. Webb (3 Cox Crim. Cas. 183; 1 Den. 338), an exposure to one person in a passage of a public-house leading to the public parlour was held insufficient. And so an urinal in a public market has been held not to be a public place: (Reg. v. Orchard, 3 Cox Crim. Cas. 248.) The exposure must be a public nuisance to render it

indictable.

ERLE, C.J.-We are all clearly of opinion that in order to be liable to an indictment for indecently exposing the person, it is not necessary that the man should stand and expose his person in a public highway. If it is in a place where a number of the Queen's subjects can and do see the exposure, that is sufficient. The rest of the Court concurring.

Conviction affirmed.

COURT OF CRIMINAL APPEAL.

November 14, 1863.

(Before ERLE, C.J., WIGHTMAN and WILLIAMS, JJ., MARTIN and BRAMWELL BB.)

REG. v. RINALDI. (a)

Forgery-Photographic impression on glass-Note of foreign country. The making on a glass plate a positive impression of an undertaking for the payment of money by a foreign state, by means of photography, without lawful authority or excuse, is a felony within the 24 & 25 Vict. c. 98, s. 19.

NASE stated by Keating, J. for the opinion of this Court.

Peter Rinaldi was tried before me at the last August Session of the Central Criminal Court, upon an indictment framed upon the statute 24 & 25 Vict. c. 98, s. 19, which charged that he did feloniously, &c., "make upon a certain plate, to wit, a plate of glass," &c., an Austrian note for the payment of one gulden.

The indictment, which was to be considered a part of the case, contained fourteen counts.

The first was as follows:

Central Criminal Court,) The jurors for our Sovereign Lady the Queen to wit. upon their oath present that in a certain foreign state, that is to say, the empire of Austria, for a long time previous to the commission of the felony and offence hereinafter charged, and at the time when the said felony and offence was committed, and since, hitherto and up to the present time, divers undertakings for the payment of money of the said foreign state, that is to say, the said empire of Austria, were made, issued, negotiated and circulated, and were lawfully current in the said foreign state, and that the said undertakings for the payment of money were, and each of them respectively was, during all the time aforesaid, made, issued, negotiated and circulated, and were current as aforesaid, for payment of a certain amount of foreign money, that

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.