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jurious in its tendencies, and consequently was a nuisance. Are there not courts which would pronounce a similar judgment upon theaters. if their duty called upon them to express an opinion? Some judges, doubtless, have regarded dancing as sinful; a dancing school, therefore, by force of this rule, would be a nuisance. And so with regard to public balls, of exhibitions of jugglery, ventriloquism, of gardens kept by individuals, but open to the public; skating parks, and the many similar resorts of idleness. Is it, or has it ever been, the law, that the judiciary is to pass on the lawfulness or criminality of all this class of cases, by the criterion of what may seem to be the tendency of each towards public evil? It seems to me not desirable that the power thus claimed is a very great extension of the judicial province as always heretofore understood. In my opinion, the innovation would be attended with many evils, uncompensated by any substantial public utility. I have not been surprised, therefore, to perceive that the case of Tanner v. The Trustees of Albion, has been recently referred to with evident disapprobation, by Mr. Justice Woodruff, in the Court of Common Pleas in the State of New York.1

My conclusion is, that a house or place kept by the owner, with a view to profit, for the practice of public amusement, not in themselves prohibited by law, can not be held to be a nuisance, unless such consequences attach from the mode in which it is kept. The mere keeping. therefore, of the ten-pin alley in question is not, per se, an indictable offense. If such games, as now practiced, have a tendency to produce idleness and immorality, the application for an appropriate remedy must be made to the Legislature, and not to the judicial department.

The second question upon which the opinion of this court is sought, is whether a ten-pin alley, of the character before described, which is kept in connection with a lager beer saloon, constitutes a disorderly house?

The principles above propounded indicate a negative response to this question. If neither the ten-pin alley nor the saloon be prohibited by law, in its separate state, their legal character can not be changed by their conjunction.

The third and last question propounded to this court, is whether s public ten-pen alley, kept for hire by the game, where the practice of the loser of the game paying for the use of the alley is habitually suffered, is a common gaming-house? The solution of this question depends on the consideration, whether under such circumstances, the parties playing lay a wager on the games which they play. The transaction is this: The keeper of the alley lets it to the players; on the

1 Updike v. Campbell, 4 E. D. Smith, 575.

condition that the loser shall pay him for its use. It would seem to be an unnecessary refinement to say, that when the players accept these terms, and play under them, the one lays a wager with the other, dependent on the result of the game. It is obvious the parties do not play for gain- they play simply for amusement, and it seems like putting a false gloss on the affair to call this gaming. In the case of People v. Sergeant,1 this precise subject came under the consideration of the Supreme Court of the State of New York, and the result was that it was declared that such practice did not amount to gaming. In Blewitt v. State, a similar view was expressed. There are no opposing decisions. The place of amusement in question can not, on this ground, be declared to be illegal.

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Let the Court of Oyer and Terminer be advised that, in the opinion of this court, the verdict which has been rendered should be set aside, and a new trial granted.

NUISANCE-COMMON SCOLD, SLANDERER AND BRAWLER.
UNITED STATES v. ROYALL.

[3 Cranch, C. C. 18.]

In the United States Circuit Court, District of Columbia, May Term, 1829.

An Indictment Charging the Defendant with being a common slanderer and a common brawler is not good.

Mrs. Ann Royall was indicted first for being a common slanderer; second, for being a common scold; third, for being a common brawler. To the first and third counts defendant demurred, to the second (common scold), she pleaded not guilty.

Opinion by CRANCH, C. J.

The first and third count of this indictment seem to us to be clearly bad, because they want that technical description which is necessary to charge the defendant as a common scold or barratrix, which are the only indictable offenses of this class.

Thus, in the case of Margaret Cooper,3" she was indicted for being a common and turbulent brawler and sower of discord among her quiet and honest neighbors, so that she hath stirred, moved, and incited

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divers strifes, controversies, quarrels, and disputes amongst her majesty's liege people, contra pacem, etc.

"It was moved in arrest of judgment that the charge was too general, and did not amount to being either a barrator or common scold, which are the only instances in which a general charge will be sufficient. "It was likewise objected, that, if the words did amount to a description of a scold, yet it should be laid ad commune nocumentum of her neighbors; for every degree of scolding is not indictable. And the court was of opinion (absente C. J.) that the judgment ought to be arrested on both exceptions, for none of the words here used are the technical words; and it must be laid to be to the common nuisance." So also in the case of Rex v. Hardwicke,1 communis vicinorum suorum oppressor was adjudged bad, because the word oppressor was uncertain; and that in such indictments the word barrectator ought to be used, "which is a word of art," "and all the other judges agreed that the indictment is not good without the word barrectator; and their great reason was that all precedents are so, and that barrectator is a word of art in such a case; but they said that the finding him to be a common oppressor of his neighbors had been good evidence to find him guilty of barratry, and therefore they bound him to his good behavior."

So in the case of Rex v. Taylor,2 2.46 an indictment was quashed for generality, being Calumniatrix, et communis et turbulenta pacis perturbatrix, ac lites, rixas et pugnas movit et incitavit, et quendam Josephum Atherton, verbis, contumeliis et opprobriis abusa fuit in domo ipsius J. A."

So in Rolle's Abridgement, Indictment K: "Defamator bonorum nominis et famæ, is not good without showing some particular matter. So defamator, vexator, et oppressor multorum hominum, common forestaller, common thief; so also common disturber of the peace of the lord the king, and that he unjustly excited and procured divers suits and discords, as well between his neighbors as between divers liege subjects of the lord the king," etc.

So also in the case of Queen v. Foxby.3 "Judgment was arrested because it was that she was communis calumniatrix, which is not the Latin word for scold, but rixatrix.”

All these have been decided not to be indictable offenses. Upon the authority of these cases, we think that the judgment upon the first and third counts of this indictment must be for the defendant.

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NUISANCE-PROFANE SWEARING.

STATE v. POWELL.

[70 N. C. 67.]

In the Supreme Court of North Carolina, 1874.

An Indictment in which it is charged that the defendant "did profanely curse and swear and take the name of Almighty God in vain" etc., "to the common nuisance," etc., charges no offense, and can not be sustained.

INDICTMENT for profane swearing, tried before CLARK, J., at the fall term, 1873, of Robeson Superior Court.

The defendant was charged in the indictment that he did, at divers times, in the streets of the town of Lumberton, "profanely curse and swear, and take the name of Almighty God in vain," concluding to the common nuisance, etc.

It was proved that the defendant was in the habit of using profane language so loud that he could be heard to a distance of two or three hundred yards; that he would curse on the streets from dark until ten o'clock at night, and that persons in the streets and houses heard him; that he would curse and swear for two or three hours at a time. His Honor charged the jury, that if the defendant continuously and habitually profanely cursed and swore, to the nuisance and inconvenience of the neighbors, and the disturbance of the good order and peace of the community, they would find him guilty.

Verdict, guilty. Motion for a new trial; motion refused; defendant appealed:

Battle & Son, for defendant.

Attorney-General Hargrove, for the State.

READE, J. The charge in the indictment is, that the defendant did "publicly, in the streets of the town of Lumberton, profanely curse and swear, and take the name of Almighty God in vain.”

The question is whether any crime is charged; whether profane swearing in public is, of itself, a nuisance.

Profane swearing is irreligious beyond doubt; and it may be admitted to be immoral, and to the refined, coarse and vulgar. And very clearly it may be so used as to be a nuisance, as for instance, if it be loud and continued. But nothing of the sort is charged in the indictment. It was indeed proved that the defendant used profane language so loudly that he could be heard at the distance of two or three hundred yards, and from dark until eleven o'clock at night; and that persons in the streets and houses heard him." And his Honor charged

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the jury that that was a nuisance. Take that to be so, but the misfortune is, that nothing of the sort is charged in the indictment. And the probota can not supply the want of the allegata. It is charged only that he cursed and swore publicly in the street; but whether in a whisper or aloud, once or repeatedly, for a moment or an hour, or whether heard by any or many, is not charged.

It is true that, in the conclusion of the indictment, it is alleged that what the defendant did was "to the common nuisance of the good peo. ple of the State then and there being and residing;" but it is settled that a conclusion of that sort does not supply any defect in the main body of the allegation.1

Suppose that the indictment had charged that the defendant publicly smoked a cigar in the street, etc., to the common nuisance, etc. We would have to hold that smoking a cigar in the street is not a crime; and, therefore, that the defendant could not be convicted of a nuisance, or if charged with so misbehaving himself as to be a nuisance, without saying how he had misbehaved, or what he had done, so as to enable the court to see that the misbehavior charged, if proved, amounted to a nuisance, we should have to hold that no crime was charged.

In State v. Pepper, lately before this court, the questions involved in this case are so well considered that it is only necessa.y to refer to it as decisive of this case.

This will be certified that the judgment may be arrested.
PER CURIAM.

Judgment arrested.

INDECENT EXPOSURE-EXPOSURE TO ONE PERSON.

R. v. WEBB.

[2 C. & K. 933.]

In the English Court for Crown Cases Reserved, 1848.

If a man Indecently Expose his Person to one Woman Only this is not an indictable offense.

The prisoner, James Webb, was indicted at the Clerkenwell Sessions for an indecent exposure.

The indictment was as follows: "Middlesex. The jurors for our Lady, the Queen, upon their oath present, that James Webb, late of the parish of Saint Margaret, Westminster, in the county of Middle

1 2 Bish. Cr. Pr., secs. 812, 813.

2 68 N. C. 259.

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