Schoudel v. State
| Decision Date | 14 November 1894 |
| Citation | 30 A. 598,57 N.J.L. 209 |
| Parties | SCHOUDEL et al. v. STATE. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
Error to the court of general sessions, Hudson county; Hudspeth, Hoffman, and Kenny, Judges.
William Schoudel and Mina Thomas were convicted of open lewdness, and bring error. Reversed.
Argued June term, 1894, before BEASLEY, C. J., and DEPUE, VAN SYCKEL, and LIPPINCOTT, JJ.
Samuel A. Besson, for plaintiffs in error.
Chas. H. Windfield, for the State.
The indictment in this case charges that the defendants "did willfully and unlawfully commit divers acts of public and notorious indecency and open lewdness, grossly scandalous, and tending to debauch the morals and manners of the people of this state, by then and there willfully and unlawfully living and cohabiting together as husband and wife, he, the said William Schoudel, and she, the said Mina Thomas, not being then married to each other." In support of this charge, it was in evidence at the trial that in April, 1892, the defendant William Schoudel obtained a decree of absolute divorce from his former wife, Eliza Jane Schoudel, in the Cook county circuit court of Illinois. He had been a resident of Illinois for more than a year previously to the date of the decree. Soon after this divorce, he was married by an Episcopal minister, in the state of Wisconsin, to the female defendant in the present case, and in the fall of 1892 they came to Hoboken to live, keeping house and openly cohabiting as man and wife. The forty-second section of the crimes act on which this prosecution is based, is in the following words, viz.: "Every person who shall be guilty of open lewdness, or any notorious act of public indecency, grossly scandalous, and tending to debauch the morals and manners of the people shall on conviction be liable to a fine not exceeding one hundred dollars, and to an imprisonment at hard labor, not exceeding twelve months, or either of them at the discretion of the court"
Upon collating the facts and the law thus stated, it would seem to be conspicuous that this conviction has no legal basis. The statutory clause which has just been recited is, unlike the provisions in the codes of many of the states, nothing more than an expression of the common law on the subject involved, and in that system it was, according to Blackstone and the ancient authorities, only "open and notorious lewdness" that was indictable; private or secret indecency not being a criminal offense. The only reason for making the misconduct punishable is that it presents itself in such a way that it becomes...
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State v. Von Cleef, A--191
...of the act in a public place; if the act was committed in private, the common law did not reach it. See Schoudel v. State, 57 N.J.L. 209, 210, 30 A. 598 (Sup.Ct.1894). Prior to 1906, New Jersey's criminal statutes simply restated the common law as to public lewdness; there was no provision ......
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