People ex rel. Lee v. Bixby

By the Court, Davis, P. J. Two questions are made in this case. First. That the indecent exposure was not made in a “public place.” Second. That the relators could not be jointly prosecuted and convicted. As to the first of these questions, we are of opinion that the exhibition made by the six relators, for money, to the five men present and paying therefor, made the room where it occurred a public place within the meaning of the statute, although it was a room in a house of prostitution, and not open to the general public. Any place may be made public by a temporary assemblage, (Bishop on Statutory Crimes, 298;) and this is especially so when the assemblage is gathered to witness an exhibition for hire. It' is obvious, from the evidence in this case, that the room where the acts took place was one used for such purposes, whenever persons could be induced to attend and pay for the same." As to the second point. The offence was a misdemeanor committed by all the relators, at the same time, each aiding and abetting every other, and all joining to make the exposure indescribably indecent. We think it was a joint offence ; and we see no reason why the offence of indecent exposure, under the statute, may not be jointly committed, where several persons agree in concert to do the acts which constitute the crime, for the purpose of making a common exhibition. It has been so held in this class of cases, by the English courts.(Rex v. Ochard, 3 Cox, 248. Rex v. Harris, 11 id., 659.) The proceedings should be affirmed and the writ dismissed, (a) Judgment accordingly. Davis, Brady and Daniels, Justices.] Footnotes [(a)] S. C., reported very briefly, 4 Hun, 636,.