The indictment charged that the defendant, on 1st day of July, 1857, and on divers other days, c., "did keep and maintain a certain ill-governed and disorderly house, and in the said house, for his own lucre and again, certain evil disposed persons, as well men as women, and as well free persons as slaves, of evil name and fame and conversation, to frequent and come together then and on said days, c., and there, unlawfully and wilfully, did cause and procure, and the said men and women in the said house at unlawful times, as well in the night as in the day, on the days and times aforesaid, there to be and remain, drinking, tippling, cursing, swearing, making loud noises and otherwise misbehaving themselves, to the great damage and common nuisance of all the good citizens *Page 26 of the State there inhabiting, residing and passing, and against the peace and dignity of the State."
The evidence was, that the defendant lived in the country, not on a public road, and that he did not keep spirits for sale; that the defendant often drank to excess; that he had five sons, all of whom were in the habit of getting drunk; that when in that situation, and at home, they would wrangle, curse and swear most profanely, and make a loud noise; that the father, at times, would try to keep them in order; that this loud noise and profane swearing would continue until after midnight, in so loud a manner as to be heard at a distance; that it was a thickly settled neighborhood. One witness swore that he lived within a half a mile of the defendant, and on several occasions — as many as a dozen times, as late as 12 o'clock at night, himself and family were disturbed by the noise.
Another swore that he lived three-quarters of a mile from the defendant, and was frequently disturbed by the noise, and that it was so loud as to be capable of being heard at least a mile and a half.
Three witnesses were examined for the defendant, who testified that they lived in the neighborhood, and within a mile of the defendant, and that they had not heard any such noise.
The Court charged that to convict the defendant, the jury "must be satisfied that the defendant kept a house in the county, and that it was a disorderly house, so much so as to disturb the neighborhood and such persons as might be passing and repassing; that if the jury should believe that there had been a loud cursing and profane swearing at a late hour of the night, the defendant being present, though made by his own sons, he not suppressing it, and such a noise as was calculated to, and did, disturb the people living in the neighborhood, they should convict, otherwise they should acquit." The defendant excepted.
Verdict, guilty. Judgment and appeal. Every one who reads the evidence in this case, will feel that the defendant is much to blame for having, by his own bad example, and his want of proper discipline, raised up a set of unruly and disorderly sons, but we are of opinion that the evidence does not support the allegations of the bill of indictment, so as to make out an indictable offense.
The dwelling house of the defendant, where the disorder and noise occurred, was in the country, and not on, or near a public road. The neighborhood was thickly settled, there being five families within the distance of a mile of him. Two of these families were frequently disturbed at a late hour of the night by the noise and uproar made by the sons of the defendant. The other three families were not disturbed by it, and did not hear it. The defendant did not join with the sons in making the noise. "At times he would try to keep them in order."
Admit, that if this disorder had been committed in a town, where all the good people of the State had a right to be, and to pass and repass, or on or near a public highway, upon the authority of the State v. Roper, 1 Dev. and Bat. Rep. 208, it would have amounted to a common, as distinguished from a private, nuisance, so as to be indictable, yet it is clearly not so, having been committed in the country to the disturbance of only two families residing in the vicinity. In State v. Matthews, 2 Dev. and Bat. Rep. 424, it is decided that one who lived in the country, and who occasionally entertained disorderly company, and permitted them to drink, gamble, curse, and make loud noises, and who took pay for their entertainment, was not the keeper of a public house, and was not liable to indictment for keeping a disorderly house. That case is stronger than ours in two particulars. It is true, the indictment alleges an assemblage of certain evil disposed persons, as well men as women of bad fame, and as well free persons as slaves, but the evidence shows that no persons were present but the defendant and his five sons. So, it is true, the indictment alleges that the defendant permitted the disorder for his own lucre andgain; but there is no evidence of this. On *Page 28 the contrary, it is evident that the defendant was a loser rather than againer by the drunkenness and misconduct of his sons. "He did not keep spirits for sale."
The precedents all contain the averment, that it was done for "lucre and gain," and the distinction seems to be this: Where the defendant commands, or actively encourages, the unlawful act, he is as guilty as if he had committed it himself, there being no accessories in misdemeanors, and there need be no proof of the averment. But where he is passive and simply permits the act to be done, there it is necessary, in order to connect him with it, to prove that his permission was given, and that he allowed it for his "lucre and gain."
However this may be, it is clear that the evidence does not make out acommon nuisance. There is error, and must be a venire de novo.
PER CURIAM, Judgment reversed.