State v. Bertheol

6 Blackf. 474

• Court: Indiana Supreme Court
• Decided: November 15, 1843
• Status: Published

Opinion

Dewey, J.

This was a prosecution for a nuisance. The indictment charges that the defendant kept “ a public, common, ill-governed, and disorderly liquor and store house” in Shel-byville, and in the same and along the street adjoining thereto, caused to frequent and come together persons of evil name and dissolute conversation; and permitted them, for lucre, to be and remain, as well in the night as in the day time, in and about the said house, “ drinlding, tippling, carousing, swearing, cursing, hallooing, quarreling, and misbehaving themselves, to the great damage, disturbance, and common nuisance,” &c. On the motion of the defendant, the Court quashed the indictment.

The question is, whether the matters alleged in the indictment constitute a public nuisance ?

Our statute prescribes the punishment for a common nuisance, but it does not define the offense. "We must, therefore, refer to the common law to learn in what it consists. Blaoh-stone describes a common nuisance as being “any thing that worketh hurt, inconvenience, or damage” to the public. 3 Comm., 215. And he classes disorderly inns, alehouses, gaming houses, “and the like,” under this head. Common stages for rope dancers and mismanaged theatres are *nuisances, because their tendency is to encourage idleness, to corrupt the public morals, and to draw together numbers of disorderly persons to the annoyance of the neiglw bourhood. 5 Bac. Abr., 147. 3o, making a great noise in the night with a speaking trumpet has been held to be an indictable nuisance. Rex v. Smith, 2 Strange, 704. It is impossible not to perceive that a common tippling-house, in and about which idle and dissolute persons are encouraged to assemble, and are permitted to drink, swear, quarrel, and shout, by night as well as by day, has the same evil tendencies as the nuisances referred to. We think it should be ranked in the same class with them, and that the Circuit Court erred in quashing the indictment.

A. A. Hammond, for the State. 8. Major, for the defendant.

Per Ouriam.—The judgment is reversed with costs. Cause remanded, &c.