
    The Commonwealth against Sharpless and others.
    THE following indictment was found in the Mayor’s Court of the city of Philadelphia, and removed to this Court by certiorari.
    
    “ March Sessions, 1815.
    “ City of Philadelphia, ss.
    « The Grand Inquest of the Commonwealth of Pennsyha- “ nia, inquiring for the city of Philadelphia, upon their oaths “ and affirmations respectively do present, that Jesse Sharp- « less, late.of the same city yeoman, John Haines, late of the “ same city yeoman, George Haines, late of the same cityyeo- “ man, John Steel, late of the same city yeoman, Ephraim “ Martin, late of the same city yeoman, and —Mayo, also “ late of the same city yeoman, being evil disposed persons, “ and designing, contriving, and intending the morals, as well « of youth, as of divers other citizens of this commonwealth, «to debauch and corrupt, and to raise and create in their “ mihds inordinate and lustful desires, on the first day of “ March, in the year one thousand eight hundred and fifteen, “ at the city aforesaid, and within the jurisdiction of this u Court, in a certain house there situate, unlawfully, wicked- “ ly, and scandalously did exhibit, and show for money, to “persons, to the inquest aforesaid unknown, a certain lewd., “ wicked, scandalous, infamous, obscene painting, repre- « seating a man in an obscene, impudent, cznzi indecent posture “ with a woman, to the manifest corruption and subversion i£ of youth, and other citizens of this commonwealth, to the ■f£ evil example of all others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania’
    
      Any offence which in its nature and by its example, tends to the corruption of morals, as the exhibition of an obscene picture, is in-* dictable at common law.
    In an indictment for exhibiting an obscene picture, it need not be averred, that the exhibition was public f if it be stated, that the picture was shewn to sundry persons for money, it is a sufficient averment of it$pubIicatio$.
    
    Nor is it necessary that fhe postures and attitudes of the figures should be minutely described; it is enough if the picture be so described as to enable the jury to apply the evidence, and to judge, whether or not it is an indecent picture.
    . Nor is it necessary to lay the house, in which, the picture is exhibited, to be a nxtiscince, / {he of-fence not. being a nuisance, hut one tending to the corruption of morals.
    
      The defendants suffered a verdict to pass again'st them, and then made a motion in arrest of judgment, for which three reasons were assigned.
    
      First, That the matter laid in the indictment is not an indictable offence.
    1. It does not charge any thing to have been committed or omitted contrary to the common law, or any statute or act of assembly.
    2. It purports to be an indictment at common law for the commission of an immoral act, yet it does not allege, or in any way shew, that the act was done publicly.
    Second., That the acts of the defendants, and the charge made against them, are not sufficiently alleged, nor is there in the indictment a sufficient description of the substance, nature, and manner of the offence meant to be charged, if it be an offence.
    
      Third, That the indictment does not lay the defendants’ house to be a nuisance, nor the acts of the defendants to have been to the common nuisance of all the citizens, &c.
    
      Browne, for the defendants.
    
      First exception. However reprehensible the conduct of the defendants may have been in a moral point of view, and however richly they may have merited the censures Of society* they have done nothing to-expose themselves to the penalties of the law. In England, they might be proper objects for the animadversion of the spiritual Courts, who would punish them with ecclesiastical censures, fro salute animariim; but they could not be reached by the temporal courts of. that country. In this state there are no ecclesiastical courts, but that is no reason for stretching the powers of our, common law courts, in order to give them cognisance of matters which do hot properly belong to them. To render any act indictable, it must appear to be against some statute, qr against the common law. Every slight misdemeanour is not indictable. 14 Vin. Ab. 369. Indictment, H. That there is any statute or act of assembly punishing the offence, with which the defendants are charged, is not pretended. The indictment must, therefore, be sustained, if at all, at common law. In the King v. Curl,
      
       it was admitted by the attorney general, that every immoral act, is not punishable by indictment. Blackstone indeed affirms, (4 Bl. Com. 64,) that open and notorious lewdness, which is an offence against religion- and morality, is cognisable by the temporal courts. Admitting the rule there laid down to he correct to the full extent, the present case does not come within its limits. But in fact it is laid down much too broadly; the cases cited do not support it. There are many offences which were not indictable at common law, such as drunkenness, cursing and swearing, fornication, &c.; offences not only immoral in themselves, but of an injurious public tendency-. The case of Rex v. Wheelhorse, one of those referred to by Blackstone, was an indictment against the defendant for being a night walker, and also for frequenting a baxvdy house, but the Court held, that part of the indictment which related to frequenting a bawdy house, void. In Sir Charles Sedley's case, which seems to constitute the chief foundation of the commentator’s opinion, there were not only acts of the grossest indecency, exhibited in the most impudent and public manner, in one of the most public places in London, (Covent Garden,) but these acts of indecency were accompanied by acts of violence towards the persons who were passing under the balcony in which Sir Charles stood, upon whom he threw down bottles filled with offensive liquor. In the subsequent cases in which Sir Charles Selby's case is mentioned, particularly in Rex v. Curl,
      
       and in the piteen v. Reed,
      
       this circumstance is adverted to, and appears to have been considered'by some of the judges “ at least, an important feature. So that independently of the exposure of his person, the, assault upon the people was sufficient to support the indictment. But Sir Charles Sedley’s case forms no precedent; because all the reports agree, that he submitted without trial or argument. In .the Queen v. Reed,
      
       in which the defendant was indicted for printing and publishing.an indecent and lascivious libel, Lord Chief Justice Holt declared, it was matter for the spiritual courts to punish, not the temporal, and a verdict having passed against the defendant, judgment was arrested by the whole Court. So too in Rex v. Gallard,
      
       an indictment against a woman for running in the common way naked to the waist, was quashed; and in Rex v. M'Donald,
      
       the court refused to.sustain an indictment against the defendant, for converting his house into an hospital for the delivery of loose, disorderly, unmarried women. Nor is. a-solicitation of chastity punishable in the criminal courts, as appears from .the case of. the Queen v. Pearson.
      
       Unless, therefore, the legislature think proper to interpose, improprieties, such as the defendants are charged with,, must go unpunished except by the frowns of society.
    • 2. If the acts of the defendants constitute an offence at law, they should have been- charged to have been done publicly. Publicity is the essence of the crime. For private injuries the remedy is by private action. An indictment is an instrument for the punishment of offences of a public nature, and against the public peace only. - Those crimes and misdemeanours, therefore, which are of public evil example, and against the common law, or some statute, are indictable. Hawk. b. 2. ch. 25. s. 4. 14 Vin. 395. Indt. 2. pl. 11. note. 3 Bac. Ab. 549. Indictment E. Hence those appropriate expressions in an indictment, “ to the evil, example “of others in like case offending.” That the Courts have invariably preserved this distinction, between those cases which affect individuals only, and those which affect the jpublic, will appear from a great number of cases which might be adduced; a few of which only it is now necessary to refer to, as the books furnish no authorities to contradict the position. An indictment for cheating in the quantity of beer which had been contracted for, was held to be bad in Rex v. Combrune, and Rex v. Wheatley,
      
       because, this was a deceit, a private injury, and therefore fit matter for a private action by the individual injured; but not for a public prosecution, because the public were not affected by it. These two cases are sufficient to this point. If publicity be- essen-. tial to the offence, it must be averred in the indictment; for nothing, is more clear, than that all the features which constitute an offence must be set out. On a motion to arrest the judgment, the Court can exercise no discretion, as they might on a motion to quash the indictment before verdict. If the crime is not sufficiently stated it is the duty of the Court to arrest the judgment. Certain appropriate expressions are required by law in the description of an of-fence, which cannot possibly be dispensed with. So necessary are these legal expressions, that “ no periphrasis or cir- “ cumlocuiion whatever will supply their place.” Hawk. b. 2. ch. 25. s. 55. And Lord Mansrield, (2 Burr. 1127,) says, “ in a criminal charge there is no latitude of intention, .«to include any thing more than is charged. The charge “ must be explicit enough to support itself.” The indictment now under consideration plainly does not support itself; it is deficient in the essential vital principle of the charge; it does not aver that to have been publicly done, which is an offence only, if it be an offence at all, when done publicly. Nor is this an objection of mere form. The proof must correspond with the charge." If the exhibition of these pictures had been alleged to have been public, evidence of a secret exhibition would be inadmissible. This was ruled in The Commonwealth v. Catlin,
      
       where it was held, that an indictment for open and gross lewdness, could not be supported by proof of a private act of lewdness,-which an individual saw without the knowledge of the parties.
    
      Second exception. The indictment should set forth every thing material in the description of the substance, nature, and manner of the offence charged, for no intendment can be admitted to supply a defect of this kind. Hawk. b. 2. ch. 25. s. 60.
    
    There are many reasons which call for this certainty.
    
      1. That it may judicially appear that the facts alleged at the trial, are the same as those upon which the bill was found: otherwise the prosecutor might vary the case to the perversion of justice.
    2. That a man may know distinctly and judicially, with what he is charged, and shápe his defence accordingly.
    3. That' the Court may distinctly and judicially know, what is the offence charged, to enable them to determine, not only the evidence proper to support the charge, but the punishment to be inflicted.
    4. That the defendant may, if charged a second time with the same, offence; plead, his former acquittal or conviction in bar.
    The necessity of great strictness in the description of an offence is proved by the following cases. In Rex v. Munoz,
      
       the defendant was indicted for cheating with false tokens, but as these tokens were not specified in the indictment, judgment was arrested. The case of the King v. Mason
      
       is of exactly the same character. Mason had been convicted of obtaining money upon false pretences; and the judgment was reversed upon error, because it was not stated what these false pretences were. So an indictment against the steward of a leet for permitting divers brewers to brew and sell contrary to the assize, was held to be bad, because it did not state what people he suffered. 14 Vin. Abt. 383. Indictment, L. Many authorities are collected in the same book to the same effect. Id. 383, 384, 385, 386. The same principles govern the decisions of our own-Courts. The case of The People v. Sands,
      
       was an indictment for a nuisance at common law, “ in keeping 50 barrels of gunpow- “ der in a certain house, near the dwelling houses of divers a good citizens, and near a certain public street.” The judgment, was arrested, because the indictment did not aver that-the powder was negligently and improvidently kept. This was the essence of the offence, and therefore, it was decided, it ought to have been stated. To apply these principles to the case before the court: the indictment states, that the picture was exhibited in a “ certain house.” . If the exhibition had been alleged to have been public, the place would not have been material; but as there was no allegation of that sort, t¿ie house should have been particularly described. It ought to have appeared from the indictment, whether it was ~ a public or a private house; whether it was the house of the defendants, or any of them, and which of them. For the same reason it is not sufficient to say, that'the picture was shewn u to persons to the inquest unknown” The number of persons to whom it was shewn ought to have been stated, that the Court might judge, whether or notit was shewn publicly. Again, the description of the picture is much too loose and vague; it conveys no definite idea to the mind. “ Lewd,} wicked, scandalous, infamous, and obscene,” are words de-! scriptive of desires and qualities, belonging to animated! beings, and are incorrectly applied to an inanimate object. Í The only part of the indictment which contains any thing like a description of the picture, is that which speaks of it as “ representing a man in an obscene, impudent, and. inde- “ cent posture with a woman.” But this is not enough; the posture ought to have been so described as to enable the Court to judge, whether or not it was obscene. Opinions on matters of this sort differ. What to one may appear indecent, may to another appear perfectly chaste and proper. In every public exhibition there are pictures which are viewed with pleasure and approbation, by many respectable and pure minded persons, as noble productions of art, while others more fastidious, consider them improper to be presented to the public eye. Is the offensive picture identified by the description given*? Sharpless had many pictures in his collection ; how is it possible to tell at which of them the indictment points ? The evidence to support this indictment might apply with equal force to a picture altogether different from that upon which the grand jury passed. The defendant, therefore, could not tell how to prepare his defence, nor could he plead this indictment to another properly drawn for the same offence.. In the King v. Montague,
      
       which was an indictment for enticing a man’s wife to elope from her husband and live in adultery, the enticing letters were set out at large. In Coke’s Inst. 315. ch. 9. it is said, that -“an indictment “ that A killed B, se defendendo, is not good; the special “ matter must be set down, that the Court may judge if the “ killing was upon inevitable necessity.” No over-nice delica- , cy should prevent appropriate language from being used in an indictment. “ In prosecutions,” says Lord Holt, “people “ ought to be plain, and not call bawdy houses, disorderly “ houses, &c.” But the case of Knowles v. The State of Connecticut,
      
       is directly in point. It was an information for exhibiting at the corner of a public square an indecent picture, describing it'particularly; and also for exhibiting in a public inn the monster represented by the picture, “ which “ said monster was highly indecent, and improper to be seen or exposed as a shewP But the Court decided, that the information should have stated the circumstances in which the indecency or immorálity of the monster consisted, that they might judge,’whether the exhibition amounted to a crime.
    
      Third exception. If the defendants are indictable at all it' is for á nuisance; the indictment should therefore conclude, to the common nuisance of all the citizens, &c. On this subject the precedents are uniform. Stubbs, C. C. C. 478 to 503. 5 Bac. Ab. 151. Nuisance, B. Hawk. b. 2. ch. 75. s. 3. 1 Saund. Rep. 135. 14 Vin. Ab. Indictment, Q. These authorities agree with the distinction taken in the Queen v. Pearson,
      
       between particular acts of bawdry, which are-not indictable, and keeping a bawdy house, which is laid as a nuisance and is punishable as such,
    
      E. Ingersoll, and Ingersoll, (attorney general,) for the commonwealth.
    The defendants have been convicted, upon their own confession,of conduct indicative of great moral depravity; they are therefore entitled to no favour. This Court is custos morum of the public; It is therefore necessarily invested with power to punish, not only open violations of decency artd morality, but also whatever tends secretly fó undermine the principles of society. After an intimation which fell from the Chief Justice,it may be taken for granted, thát a public exhibition of an indecent object is indictable. But the law is not circumscribed within such narrow limits. It may be safely affirmed, that whatever tends to the destruction of morality in general, may be punished criminally. Crimes are public offences, not because they are perpetrated publicly, but because their effect is to injure the, public. .Burglary, though done in secret, is a public offence; and secretly destroying fences is indictable. The exhibition of this picture may be considered as the publication of a libel, upon the authority of the case of the King v. Wilkes,
      
       which was an information for publishing an obscene and impious libel, called “An Essay on Woman,” and the King v. Curl,
      
       where an obscene book was held to be a libel. It is true, it must appear, thdt the picture was exposed to public view, but it is not necessary, that any particular form of words should be used, in order to make this appear. It is sufficient if it appear from the whole language of the imdictment. The indictment avers, thdt the picture was shewn to persons to the inquest unknown.” The use of the plural number proves, that it was shewn to two persons atleast; and if it be considered as a libel, its having been shewn to one was a sufficient publication. 4 Bl. Com. 150. In 10 State Trials, 98. Appx. the case of Sir Charles Sedley is referred to in a note, but it is not said, that the acts done by him were indictable, because they were publicly done. The King v. Montague et al. was an indictment for enticing a man’s wife to elope from her husband, and live with one of the defendants in adultery, but there was no, allegation, that the acts charged were publicly done. So in the case of the King v. Dingley
       and again in the King v. Lord Gray.
      
       In none of these cases is the word publicly used. Here the picture is laid to have been exhibited for money, which necessarily implies that the exhibition was public.
    
      i It is not denied, that the indictment must shew some place in which the offence was committed. “ It must appear,” says Hawkins, b. 2. ch. 25. s. 83, 84, “to have been within “the jurisdiction of the Court in which the indictment was “ taken,"and must also be alleged in such a manner as is perfectly free from all -repugnance and inconsistency.” This is all that is required, and this is done. . The exhibition is stated to have taken place in a certain house, in the city of Philadelphia, and within the jurisdiction of the Court. This is a sufficient description of the place “.perfectly free from “ all repugnance and inconsistency.”
    The offence is described with reasonable certainty. The jury would have had no difficulty in applying the evidence to the picture indicated in the indictment, and that is enough; the records of the Court are not to be polluted by obscene and indecent language. There are many cases in which no greater- certainty can be attained than in this. For example, an indictment for an assault and battery upon A; but there may have been two or more breaches of the peace. Again, an indictment may charge the stealing of a bay horse the property of A B, yet A B may be the owner of several bay horses. In Dougherty's Cr. Cir. Com. 315, will be found a precedent, which has been pursued by the present indictment as far as the facts would admit of.
    It is true, that there the sale of the obscene print, which was the object of the indictment, was alleged to have taken place in a public shop, but in this case the house of the defendants could not have been described as a public house, because that would have implied, that it was a tavern, which it was not. It is also true, that in the precedent referred to, the name of the offensive print is given, which could not have been done in this case, as Sharpless’s picture had no name. In every other respect the indictments correspond. In Starkie on Criminal Pleading, vol. i. 63. 83. 176. and vol. ii. 463, 464. 469.471. all the law on this subject is collected.
    
      In reply, it was said, that to call this a prosecution for a libel was placing it in a very novel and unexpected point of view: That the offence charged wanted at least one essential feature of a libel; it did not reflect upon any particular person, without which, according to Hawkins, b. 1. ch. 73. s. 1. nothing can be esteemed a libel: That in the King v. Lord Gray, which had been much relied upon by the counsel for the prosecution, judgment was never entered against the defendant, a nolle prosequi having been entered by the attorney general: (see State Trials.) That in the case of the King v. Wilkes, the question, whether an information or indictment could be sustained for publishing an obscene libel was never made, argued, or decided the information was tried while Mr. Wilkes was in France, and his counsel and agents made no objection thereto: That the passage from Hawkins, b. 2. ch. 25. s. 83. applied only to those cases in which the place was immaterial, but that here the place was a material part of the offence: And that the precedent from Dougherty’s Cr. Cir. Com. differed essentially from the present indictment, the offensive print there spoken of being not only described and named, but further identified by being stated to have been contained in a pamphlet, which is also particularly described.
    
      
       2 Str. 788.
    
    
      
      
        Popham, 208.
    
    
      
       1 Sid. 168. Latch, 173.
    
    
      
      
         2 Str. 788.
    
    
      
      
         Fortesq. 98.
    
    
      
      
         Fortesq. 98.
    
    
      
      
        Keeling, 163.
    
    
      
       3 Burr. 1645.
    
    
      
      f) 1 Salk. 382.
    
    
      
      а) 1 Wils. 301.
    
    
      
       2 Burr. 1125.
    
    
      
       2 Burr. 1125. 12 Mod. 413.
    
    
      
      
         1 Mass. Rep. 8.
    
    
      
      
         2 Str. 1127.
      
    
    
      
       2 T. R. 581.
    
    
      
       1 Johns. Rep. 78.
      
    
    
      
      
        Trem. P. C. 209.
    
    
      
      
         Comb. 303.
    
    
      
      
         1 Day's Rep. 103.
    
    
      
      
        4 Burr. 2527.
      
    
    
      
      
         4 Burr. 2527.
      
    
    
      
      
         2 Str. 788.
    
    
      
      
        Trem. P. of C. 209.
    
    
      
      
         Trem. P. of C. 213.
      
    
    
      
      
        Id. 215.
    
   Tilghman C. J.

This is an indictment against Jesse Sharpless and others, for exhibiting an indecent picture to divers persons for money. The defendants consented, that a verdict should go against them, and afterwards moved in arrest of judgment for several reasons.

1. “That the matter laid in the indictment is not an in- “ dictable offence.” It was denied, in the 'first place, that even a public exhibition of an indecent picture was indictable; but supposing it to be so, it was insisted, that this indictment contained no charge of a public exhibition. In England, there are some acts of immorality, such as adultery, of which the ecclesiastical courts have taken cognisance from very ancient times, and in such cases, although they tended to the corruption of the public morals', the temporal courts have not assumed jurisdiction. This occasioned some uncertainty in the law; some difficulty in discriminating between the offences punishable in the temporal and ecclesiastical courts. Although there was no ground for this distinction in a country like ours, where there was no ecclesiastical jurisdiction, yet the common law principle was supposed to be in force, and to get rid pf it, punishments were inflicted by act of assembly. There is no act punishing the offence charged against the defendants; and therefor^ the case must be decided upon the principles of the common law. That actions of public indecency, were always indictable, as tending to corrupt the public morals, I can have no doubt ; because, even in the profligate reign of Charles II. Sir Charles Sedley was punished by imprisonment and a heavy fine, for standing naked in a balcony, in a public part of the city of London. It is true, that, besides this shameful exhibition, it is mentioned in some of the reports of that case, that he threw down bottles; containing offensive liquor, among the people; but we have the highest authority for saying, that the most criminal part of his conduct, and that which principally drew upon him thfe vengeance of the law, was the exposure-of his person. For this I refer to the opinion of the judges in the Queen v. Curl, (2 Str. 792.) Lord Mansfield, in the King v. Sir Francis Blake Delaval, &c. 3 Burr. 1438, and of Blackstone in the 4th volume of his Commentaries, page 64. Neither is there any doubt, that the publication of an indecent book is indictable, although it was once doubted by the Court of King’s Bench, in the Queen v. Reed, (in the sixth year of Queen Anne.') But the authority of that case was destroyed, upon great consideration, in the King v. Curl, (1 George II.) 2 Str. 788. The law was in Curl’s case established upon true principles. . What tended to corrupt society, was held to be a breach of the peace and punishable by indictment. The Courts are guardians of the public morals, and therefore have jurisdiction in such cases. Hence it follows, that an offence may be. punishable, if in its nature and by its example, it tends to the corruption of morals ; although it be not committed in public. In the King v. Delaval, &c. there was a conspiracy, and for that reason alone, the Court had jurisdiction ; yet Lord Mansfield expressed his opinion, that they would have had jurisdiction, from the nature of the offence, which was the seduction of a young woman, under the age of twenty-one, and placing her'in the situation of a kept mistress, under the pretence of binding her as an apprentice to her keeper; and he cited the opinion of Lord Hardwicke, who ordered an information to be filed against a man.- who had made a formal assignment of his wife to another person. In support of this we find an indictment in Trem. Pl. 213, (The King v. Dingley) for seducing a married woman to elope from her husband. Now to apply these principles to the present case. The defendants are charged with exhibiting and shewing to sundry persons, for money, a lewd, scandalous,, and obscene painting. A picture tends to excite lust as strongly as a writing; and the shewing of a picture, is as much a publication, as the selling of a book. Curl was convicted of selling a book. It is true, the indictment charged the act to have been in a public shop, but that can make no difference. The mischief was no greater than if he had taken the purchaser into a private room, and sold him the book there. The law is not to be- evaded by an artifice of that kind. If the privacy of the room was a protection, all the youth of the city might be corrupted by taking them one by one into a chamber, and there inflaming their, passions by the exhibition of lascivious pictures. In the eye. of the law, this would be a publication, and a most pernicious one. Then, although it- is not said in the indictment, in express terms, that the defendants published the painting, yet the averment is substantially the same, that is to -say, that they exhibited it to sundry persons for money; for that in law is a publication.

2., The second reason in arrest of judgment is, that the picture is not sufficiently described in the indictment. It is described as a lewd and obscene painting, representing a man in an obscene, impudent, and indecent posture -with a woman. We do not know^ that the picture had any name, and therefore it might be impossible to designate it by name. What then is expected ? Must the indictment describe minutely, the attitude and posture of the figures ? I 'am for paying some respect to the chastity of our records. These are circumstances which may be well omitted. Whether the picture was really indecent, the jury might judge from the evidence, or if necessary from' inspection. The witnesses could identify it. I am of opinion^that the description is sufficient.

3. The third and last reason is,- that the indictment does not lay the defendants’ house to be a nuisance, nor the act of the defendants to be to the common nuisance of all the citizens, &c. The answer is plain. It is not an indictment for a nuisance, but for an action of evil example, tending to the corruption of the youth, and other citizens of the commonwealth, and against the peace, &c. In describing an offence of this kind, the technical word nuisance would have been improper. My opinion is,' that the indictment is good, and therefore, the judgment should not be arrested.

Ye ates J.

I perfectly concur in the sentiments expressed by Sir Philip Torke, in the case of the King v. Curl, (2 Stra. 790,) that although every immoral act, such as lying, &c. is not indictable, yet where the offence charged, is destructive of morality in general; where it does or may affect every member of the community, it is punishable at common law. The destruction of morality renders the power of the government invalid, for government is no more than public order. It weakens the bands by which society is kept together. The corruption of the public mind in general, and debauching the manners of youth in-particular by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences, and in such instances Courts of Justice are, or ought to be, the schools of morals. So far from the law of England being changed on this point by modern decisions, we find in the case of the King v. Wilkes in 1770, (4 Burr. 2527,) who was convicted on an information folian obscene and impious libel, .called an Essay on Woman, the present objection was not taken .by his counsel. The wicked intention of' the defendants; the exhibition of the obscene painting for money to'persons unknown; and the effects of such scandalous conduct, a,r.e facts found by the jury, and. I cannot bring my mind to doubt for a, single moment, that the offence charged, falls. within coghisance of a court of criminal jurisdiction. .

The defendants’ counsel have objected, ¡that should the acts charged against them, constitute an offence at common law, they are not laid with sufficient legal certainty; and that it may so happen, that different evidence may be given to the grand and traverse jurors for the same offence. To this it has been properly answered, that the same difficulty may occur in many indictments, as for assaults and batteries, where there have been several breaches of the peace at different times, by the party charged, and only one indictment has been preferred against him. As to the defendant being twice punished for the same offence, I see no danger whatever. If one obscene, scandalous picture alone has been exhibited to view (whether on canvas, paper, or parchment, cannot be material) a conviction or acquittal on the present indietment may be pleaded in bar to a future prosecution. If more than one such picture has been exhibited they may prove the truth of their plea, of autrefoits convict, or acquit, by shewing the evidence of the specific charge made against them on their trial. The same seeming difficulty may arise in a charge of felony laid in stealing a bay horse of AB, (which surely would be sufficiently certain, without laying the particular natural marks of the horse), and yet if A B had more than one bay horse which had been stolen, the same objection might have been made as .is now taken.

This indictment has evidently been framed from the precedent in Dougherty's Cro. Circ. Comp. 315, for exposing to sale an obscene print, which it minutely follows, except so far as the clerical character is attacked, and laying the act to have been done in an open public shop of the defendant in exposing it to J N, &c. The precedent relied on,, states the exposure of the objectionable print to a single individual in an open and public shop : but here the infamous and obscene painting was exhibited and shewn for money, in a certain house'to persons unknown to the inquest. The question then in this part of the case is narrowed to a single point; — Whether the exhibition of a lewd, wicked, scandalous, infamous, and obscene painting, representing, Sic. to certain individuals in a private house for money, is dispunishable by the sound principles of common law ? On this question I cannot hesitate. It is settled, that the publication of a libel to any one person renders the act complete. (4 Bla. Com. 150.) No man I is permitted to corrupt the morals of the people. Secret poi- l son cannot be thus disseminated. A slight knowledge of human nature teaches us, “ that while secresy is affected in “a case like the present, public curiosity is more strongly excited thereby, and that those persons who may ignorantly “ suppose they have had the good fortune of seeing bawdy “pictures, will not content themselves with keeping the se- “ cret in their own bosoms !” Unless we shall consider the conduct of the defendant, justifiable, and lawful in the present instance, the indictment is .supportable, if it alleges the offence as it really and in truth was* committed.

As to the nature and manner in which the painting is represented to have been made, I hold it to be sufiicient to state, that it represented a man in an obscene, impudent, and indecent posture with a woman, either clothed or unclothed, without wounding our eyes or ears, with a particular description of their attitude or posture. Why should it be so described? If the jurors are satisfied on the proof, that'the persons represented were painted in an impudent and indecent posture, will not this give the Court all the information they can require ? Some immodest paintings, it is true, may carry grosser features of indecency than others, and in fact, may produce disgust in the minds even of the most debauched ; yet if the painting here, tended to the manifest corruption of youth and other citizens, and was of public evil example to others, I think it sufficiently described. As to the exception, that the indictment does not say, that the defendants have been guilty of a common nuisance, it suffices to remark, that the. offence is not alleged as-a nuisance, but as a libel on the morals and government of the state, in the same manner ns tyas done in the case of Wilkes for his Essay on Woman.

Upon the whole, I am of opinion, that the motion in arrest of judgment be overruled, arid that judgment be rendered on the verdict.

Brackenridge J. concurred, but was absent through indisposition when the opinions were delivered;

Motion in arrest of judgment overruled, and judgment on the verdict.  