On an indictment for open gross lewdness and lascivious behavior, evidence of lewdness or such behavior in secret will not support the indictment.
THIS was an indictment against the defendant, grounded on the stat. 1784, c. 40, § 6, and contained three counts.
The first count stated that on the last day of July, 1803, at _____, the defendant, being then and there a married man, did commit open gross lewdness and lascivious behaviour, and did then
and there lewdly and lasciviously lie on a bed with one A. D. she the said A. D, then and there not being the wife of the defendant.
The second count was similar to the first, excepting that it charged the act to be, that the defendant did lewdly and lasciviously put his arms about the said A. D.
The third count, was in all respects like the first, only alleging a different time.
The marriage of the defendant was proved by the certificate of the clerk of the town of _______, in which the defendant resided and where his marriage was recorded.
The evidence in support of the two first charges arose from the testimony of a witness who said that on the day mentioned in the indictment, and in the day-time, he was at the dwelling-house of A. D. and that he there saw the defendant on a bed with her, in a very familiar situation. This witness testified that the bed was in a room the doors of which were shut and the window shutters of the front windows closed, but that he saw the defendant and A. D. by looking through the glass or a broken pane of glass, he did not recollect which, of an end window. The same witness testified that on the same day, in the day-time, he saw the defendant throw his arms about the said A. D. and hug her ; this he said was in the stoop or piazza of the dwelling-house, the witness being in the house and seeing the transaction through a door-way, the door being partly shut.
In support of the third count, another witness testified that in the evening of the day mentioned in that count, when it was very dark, he was sitting in a room of the same dwelling-house alone, that A. D. was in an adjoining room, (the door of communication between the two rooms being open) sitting on a bed; that while he was so sitting in the room, a man, whom he believed to be
the defendant, passed through the room in which the witness then was, went into the other room to the said A. D. there then being no light in the same, except a dim light arising from the fire in the chimney, sat down on the bed with her, and that the defendant and A. D. soon after, both got upon the bed, where they were together about fifteen minutes, when the defendant arose from the bed and went away, without seeing the witness, as he believed.
The counsel for the defendant offered no evidence, but contended that as open gross lewdness was charged, and that only, in the indictment, the evidence on the part of the government did not in any degree support the charge ; nothing more being proved, at the utmost, than secret acts.
The court (Strong, Sedgwick, Sewall, and Thacher, Justices) were unanimously of opinion, and Strong, J. who charged the jury, stated it as the unanimous opinion of the court that although it might be true that the facts proved amounted to an offence, yet that they did not prove the offence charged in the indictment ; that the offence charged is open gross lewdness and lascivious behaviour, and nothing more; admitting every thing which has been testified to be true, there is certainly nothing more proved than secret or private lewdness and lascivious behaviour, which cannot in any degree support the charge in the indictment.
Attorney General (Sullivan) for the prosecution.
Dewey and Bidwell for the defendant.