Dunnaway v. State , 17 Tenn. 350 ( 1836 )

Green J.

deli vered theopinion of the court.

The court erred in rendering the judgment in this case; 1st. The charge is, that the defendant kept a tipling house? and-that it was of a disorderly character, but the jury do nofr find that he kept a tipling house at all, therefore the.court could not rightfully pronounce, that he kept a disorderly tipling house, 's argued that as the negroes got drunk there, we must presume it was a tipling house. The sale of spirituos liquors by less quantities than a quart without license, constitutes a tip-ling house. How can we know that spirituous liquors were not purchased elsewhere, and brought to the house of defendant to be drunk, or that the liquor was not given to the ne-groes? There is nothing in thiá verdict to justify the court in assuming that a tipling house was kept for this reason, therefore the verdict is not broad enough to authorise a judgment upon this indictment.

2nd. But the charge is, that it was a ‘‘disorderly common tippling house.” To constitute a l‘common tippling house of a disorderly character” there must be more than one act of tipling and disorder. Roscoe Crim. Ev.663. As therefore the verdict finds only one act of this kind, it does not authorise a judgment on this indiciment.

But it is argued, that reject the word, “common” and “tip* ling” and then the indictment will be for keeping a “disorderly house” and that the proof supports this charge. In the first place, I know of no authority for sustaining an indictment against a man for keeping a “disorderly house” simply, but if that could be done, the charge in this indictment cannot be divided in this way. For the charge is, that hé kept a common tipling house, now reject ‘tipling’ and you have him charged with keeping a “common house,” which cannot be the meaning of the language. It is therefore apparent that the adjectives “disorderly” and “common” qualify the compound substantive, “tippling house.” This word then, cannot be divided, and hence it was indispensable that the jury should have found that a tipling house was kept. Let the judgment be reversed.

Judgment reversed.