1. There was no misjoinder of counts in the indictment. The offences charged in the two counts, being of the same nature, might well be included in one indictment. 1 Chit. Crim. Law, 248.
But if this objection were valid, it could not now avail the defendant, because it was cured by the nolle prosequi of the first count. After the jury had been empanelled, the defendant had a right to demand a verdict on both counts. This he did not do. If he had asked for a verdict on the first count, and it had been refused by the court, it would have been a valid ground of exception. Commonwealth v. Tuck, 20 Pick. 365. Not having insisted on a verdict at the tidal, he cannot now make the nolle prosequi a matter of exception.
2. The character of the women in the house, and the character of their conversation in the house, were direct and pertinent evidence of the character of the house. All this evidence related to what took place within the house ; which distinguishes this case from that of Commonwealth v. Harwood, 4 Gray, 41.
3. There is no duplicity in the second count of the indictment on which the defendant was convicted. It charges only one offence—the maintenance of a common nuisance. The allegation of the various different purposes for which the premises were used, constituting the means by which the nuisance was created, was mere matter of description ; and although each of them might be criminal in its nature, yet they are not charged as distinct offences, but only as forming the elements which made up the single offence of a nuisance, which is the misdemeanor charged in the indictment.
4. The offence of the defendant consisted in keeping and main*331taining the house. It was not necessary to allege or to prove that it was used by him, or by whom it was used.
5. Nor was it necessary to prove that the premises described in the indictment were used for all the purposes therein alleged. If any one of them was proved, it was sufficient to support the charge, because the statute provides that such use shall be deemed to be a common nuisance. The proof of all would amount to no more. In either case, whether one or all were proved, the same offence would be made out, and the defendant would be liable to the same penalty.
It is analogous to the familiar case of an indictment in which a party is charged with the larceny of several different articles. It is not necessary to prove that all the articles named were stolen. It is sufficient if the larceny of one or more is proved. It is a general rule, which runs through the whole criminal law, that it is sufficient to prove so much of the indictment as shows the defendant to have been guilty of a substantive crime therein stated, though not to the full extent charged against him. 1 Chit. Crim. Law, 558. 1 Deac. Crim. Law, 458. Commonwealth v. Armstrong, ante, 50.
It follows that a conviction under this indictment, upon proof that the premises were used for any one of the purposes alleged, would be a good bar to another prosecution, covering the same period, for a nuisance caused by any other unlawful use or occupation of the premises. The offence is one and the same, however it may be proved.
6. The indictment in the present case is framed according to the established precedents in criminal pleading, adapted to such offences, in which it is usual to allege that the premises are used for various distinct unlawful purposes. The gist of the offence is keeping such a house to the common nuisance, and under a general charge proofs of particular instances may be given. Nor is it necessary to prove, in support of the charge, any particular annoyance to the public or the neighborhood. The nuisance consists in drawing together dissolute persons engaged in unlawful practices, thereby endangering the public peace, and corrupting good morals. Rex v. Higginson, 2 Bur. 1233. J'Anson v. Stuart, *3321 T. R. 754. Clarke v. Periam, 2 Atk. 339. 2 Chit. Crim. Law 39. note. 3 Chit. Crim. Law, 671. Exceptions overruled*
In the cases of Commonwealth vs. Michael Kelley, and Commonwealth vs. Edward France, the defendants were convicted at June term 1857 of the court of common pleas, upon indictments precisely similar, except in inserting, after the words “ intoxicating liquors," this averment: “ Whereby, and by force of the statute in such case made and provided, the said building, then and there kept and maintained by the said defendant, and then and there used and resorted to as aforesaid, was then and there a common nuisance.” Each defendant moved in arrest of judgment, for the following reasons: “ Because the said count does not set forth that the building was used by the defendant for the illegal sale and the illegal keeping of intoxicating liquors; neither does it sufficiently set forth that the sale or keeping of intoxicating liquors was without appointment or authority, with substantial certainty; neither does it allege and set forth the facts which constitute a house or building used for illegal gaming, or one used for the illegal sale or keeping of intoxicating liquors.” Bishop, J. overruled the motions, and the defendants alleged exceptions, which were argued at October term 1857, by J. Brown, for Kelley, J. C. Blaisdell, for France, and T. II. Clifford, (Attorney General,) for the Commonwealth, and overruled