State v. Ellar, 12 N.C. 267, 1 Dev. 267 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 267, 1 Dev. 267

The State v. Jacob Ellar,

From Ashe.

Profane Swearing charged to be a public nuisance, is punishable by indictment, notwithstanding the power to proceed summarily, given to the Justices of the Peace by the act of 1741.

The indictment charged, that the Defendant being an evil disposed person, “ did, in the public street of Jefferson, profanely curse and swear, and take the name of God in vain, to the evil example, &c. and to the common nuisance of the good citizens of the State.”

After a verdict for the State, the Counsel for the Defendant moved in arrest of judgment, upon the ground that the offence was not indictable. His honor Judge Strange sustained the motion, and judgment being arrested, the Solicitor appealed.

The Attorney-General cited the State v. Kirby ( 1 Mur-phey 254) and the State v. Waller (3 do. 229). No Counsel for the Defendant appeared in this Court.

Taylor, Chief-Justice.

It was held, in the case of the State v. Waller, that if the offence with which the Defendant then stood charged, had been laid as a common nuisance, and the Jury had so found it, thejudg-ffipnf would have been supported. Drunkenness and profane swearing are placed on the same footing by the act of 1741, c. SO, and where committed in single acts, may be punished summarily by a Justice of the Peace. But where the acts are repeated, and so public as to become an annoyance and inconvenience to the citizens at targe, no reason is perceived why they are not indictable as common nuisances. Several offences are stated in the books as so indictable, though not more troublesome to the public than the one before us. A common scold is indictable as a common nuisance; and with equal, if not stronger reason, I should think, a common, profane swearer, may be so considered.

Per Curiam. — Let the Judgment be reversed.