This is an appeal by a former temporary guardian from a decree of the Probate Court dismissing his petition to revoke a decree relative to his first account. The probate judge made a voluntary report of material facts. In compliance with an order of this court the judge filed a "Supplemental Report of Material Facts." He subsequently "discovered an error" in his "Supplemental Report" and made a correction. With his "Supplemental Report" the judge enclosed an "addenda" and stated that this was "not part of the Supplemental Report." This "addenda" included an alleged offer of settlement by the surety company on the guardian's bond. A communication from the surety company's attorney to this court denies making any such offer. In view of the paucity of the judge's findings plus the obvious interest of the surety company in the matter we are of opinion that the surety company should be made a party to the proceeding on the first account and that there should be a de novo hearing therein. See G. L. c. 211, Section 3. Accordingly, the decree dismissing the petition to revoke is reversed.

The petitioners seek a writ of mandamus to compel the respondents to comply with G. L. c. 71, Section 31. This statute has been held unconstitutional. Attorney Gen. v. School Comm. of No. Brookfield, 347 Mass. 775.

Orders overruling demurrers reversed.

Order dismissing petition affirmed.

The defendant was found guilty by a judge of the Superior Court sitting without jury of open and gross lewdness and lascivious behavior. The defendant, who came from Taunton on a chilly March night, sought directions to Brockton from the female complainant on the Bridgewater State Teachers College campus. She was unable to hear him and approached his car to discover him naked from the waist down with his left hand "between his legs on his private." "The complainant

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observed his private organ." The contention of the defendant that it was not sufficiently shown that he intended his act to be "open," G. L. c. 272, Section 16, is without merit. The circumstances of his act are indicative of an intention which made it "open" as defined in Commonwealth v. Wardell, 128 Mass. 52, 54, and Commonwealth v. Cummings, 273 Mass. 229, 231.

Exceptions overruled.