Price v. State , 96 Ala. 1 ( 1892 )

STONE, 0. J.

Tbe maintenance of a public nuisance is 'an offense condemned and punished by tbe common law; and altbougb not declared by our statutes a misdemeanor, it is so regarded and acted upon in our jurisprudence. We must, therefore, look to tbe common law for the constituents of tbe crime. Among tbe many public nuisances, which were made indictable by tbe common law, is that of keeping a disorderly bouse. It is for this offense tbe appellee in tbe present case was indicted and convicted.

Tbe second count of tbe indictment, which contains substantially tbe averments of tbe two counts, charges that “Thomas Price did keep a disorderly, public and ill-governed bouse, and did then and there unlawfully cause and procure certain persons, as well women as men, of evil name and fame to frequent and come together, in bis said bouse at many unlawful times, as well in the night as in tbe day, and did permit them there to be and remain, drinking, tippling, carousing, swearing, indecently dancing, and misbehaving themselves, to tbe great damage, and common nuisance, and evil example of all tbe citizens, not only of tbe neighborhood, but all tbe citizens of tbe county,” &c. Tbe indictment sufficiently charges tbe offense of keeping a disorderly bouse.

Tbe demurrer to tbe defendant’s plea of former conviction was properly sustained. As shown by said plea, tbe offense for which the defendant was formerly prosecuted and convicted was for violating tbe Sunday iaws. This offense is made punishable by statute, and is separate and distinct from tbe offense for which tbe defendant was indicted in this case. While in' keeping and maintaining a disorderly bouse tbe defendant may have violated tbe Sunday laws of this State on one or more occasions, this violation on one or more Sabbaths could not amount to tbe keeping of a disorderly bouse in such sort as to merge the two separate offenses in one. Nor could tbe conviction for tbe one be pleaded in defense of a prosecution for tbe other.

A disorderly bouse has been defined, in general terms, to be “a bouse or other place to which people resort, to tbe disturbance of tbe neighborhood.” — 1 Bisb. Or. Law, § 1046. In Hickey v. State, 53 Ala. 514, this court defines tbe elements necessary to constitute a bouse disorderly, in tbe following language : “That such a bouse is a resort, and criminal practices are tliere pursued, offending tbe moral sense, and endangering tbe security .'of person or property, fixes its character as a public nuisance. It may not be strictly a disorderly bouse; tlie‘.quiet of tbe locality may be unbroken; tbe common injury “flows -from tbe evil influence it exerts — from tbe temptations and opportunities for tbe commission of crime it affords.” We conclude, therefore, that to sustain a conviction of the offense we are discussing, it is not essential that there should be any disorder or dis-. turbanee in tbe sense that it disturbs tbe public peace or tbe quiet of tbe whole neighborhood. It is enough that tbe acts done at such bouse are of tbe character charged, and contrary to law and subversive of public morals. The result is tbe same, whether thelhnlawful acts are denounced by tiie common law or by statute. — Hickey v. State, 53 Ala. 511; Cheek v. Com., 79 Ky. 359,; Thatcher v. State, 48 Ark. 60; State v. Williams, 30 N. J. Law, 104; 5 Amer. & Eng. Encyc. of Law, p. 693. Under tbe principles announced, tbe several portions of tbe testimony objected to by defendant were properly admitted. The defendant’s objections to different parts of tbe testimony were also correctly overruled for tbe further reason, ipaat smch evidence tended to show defendant’s knowledge óf and connection with tbe disorderly bouse.

A conviction for keeping ajjisorderly bouse can be had on proof that only one person in tbe neighborhood or community was disturbed or annoyed, if tbe acts done therein or thereabouts were of such .¿liaracter as would tend to annoy all good citizens; and 'this,' although there was no evidence of any indecency or disorderly conduct being perceptible from tbe exterior of .the bouse. — Com. v. Hopkins, 133 Mass. 381; s. c., 48 Amer. Rep. 527; 5 Amer. & Eng. Encyc. Law, p. 694. There was”no error in tbe two charges given by tbe court; nor in the-refusal of tbe court to give the first two charges asked by’defendant.

To sustain an indictment for keeping a disorderly bouse, it is not necessary that tbe defendant should know tbe reputation of tbe persons who came to bis bouse, nor is it essential that be knew or intended that they should so misbehave as to annoy or disturb others. — Intention is no element of tbe offense. Tbe indictment is sustained by proof of facts that show tbe defendant kept "a public bouse; that by bis invitation or permission persons came to said bouse from time to time, and while there indulged in practices that are injurious to public morals, or',’ health, or convenience, or safety; or do snob things as will annoy and disturb one or more persons in the neighborhood or community. Nor is it a defense to such indictment, that the keeper of the house attempted to prevent any disorderly conduct or misbehavior. Com. v. Cobb, 120 Mass. 356. Eor these reasons, as well as others, the court properly refused to give the third charge requested by defendant. The refusal could also have been based on the ground that the charge was misleading.

We discover no error in the record, and the judgment is affirmed.