State v. Deberry, 27 N.C. 371, 5 Ired. 371 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 371, 5 Ired. 371

STATE vs. WILLIAM G. DEBERRY.

It is only %vhen the act or acts done by a person, or the omission to act by one’, who ought to act, operate to the annoyance, detriment or disturbance of the public at large, that the offender is liable to indictment at the common law.

A single act of drunkenness, though it be in the presence of a crowd, is not indictable, if the persons assembled were not thereby annoyed or disturbed.

Appeal from the Superior Court of Law of Montgomery County, at-the Spring Term, 1845, his Honor Judge Pearson presiding.

The indictment in this case charged, that, the defendant “ on, &c. in the county of Montgomery, did become drunk and intoxicated \yith spirits, and being so drunk and intoxicated, did go out and exhibit himself in the streets ofLawrence-ville, during the sitting of the Superior Court of Law for the county of Montgomery, in the town of Lawrenceville, the good citizens of the State being then and there assembled for the transaction of business, and passing and repassing, <fcc. and in the presence of the said citizens, did then and there so exhibit himself, and in the hearing of the said citizens, did then and there in a loud voice curse and swear, and use divers profane and blasphemous expressions, and take in vain the sacred name of the Almighty, to the common nuisance, &c.”

The defendant having pleaded not guilty, the jury on the trial found the following special verdict: « The jury find that the defendant, on the first day of March, 1844, in the county of Montgomery, during the sit» ting of the Superior Court of Law for that county, at Law-rencevQie¡ became drunk and intoxicated with spirits ; thathe was not so drunk as to be unable to walk or to stagger, but it was apparent from his conversation, looks and gestures, that he was excited by, and laboring under the effects of, spirits; that, in this condition, he went to a cart, standing on or near the edge of one of the public streets, where some twenty or thirty persons were assembled, talking and drinking, and in their hearing abused the judge, then holding the court, in a vulgar manner, and also abused the grand-jury. He then went off, but afterwards returned to the cart and repeated what he had before said. His tone of voice was louder than is usual in conversation between two persons, but was not so loud as to be heard at a greater distance than twenty or thirty steps, although the persons there, if thay had listened, could all have heard him. The people there assembled were not disturbed in their business or conversation by what he said, and did not assemble nor draw up around him, but his language excited no particular attention among the by-standers. It was one hundred yards from the place, where the court was sitting, and did not disturb the business of the court. And whether upon these facts, the defendant is guilty, &c.” the jury submit to the court.

The court being of opinion, that the facts, found in the special verdict, did not amount in law to a common nuisance, and did not sustain that allegation in the indictment, a verdict of not guilty was entered ; and judgment for the defendant being rendered, the Solicitor for the State appealed.

Attorney General for the State.

No counsel in this court for the defendant.

Daniel, J.

The special verdict in this case found is, that the defendant was slightly intoxicated one day, near a public street in the town of Lawrenceville, during the sitting of the Superior Court. He was a hundred yards from the courthouse, and did not disturb the court. For this act of enness, he might have been, by force of the act of assembly, fined twenty-five cents by a judgment of a justice of the peace. It is also found by the verdict, that the defendant, at the same time and place, made use of profane language, curs,, ing and swearing, and also abusive and vulgar language, when he was speaking about the judicial conduct of the judge then holding the court, and also the grand-jury. The defendant was liable, under the act of assembly, to a conviction befare a justice, and to have been fined twenty-five cents “ for every oath or curse.” But, it is only when the act or acts done by a person, or the omission to act by a person, who by law-ought to act, operate to the .annoyance, detriment or disturbance of the publiG at large, that the offender becomes amenable to the public by way of indictment at common law. So far from either of the two facts found by the verdict, or both combined, coming up to the above definition of a public nuisance, the verdict expressly finds, that the people were not disturbed in their business or conversation by him. There are many immoral acts and vicious conduct of persons, which bring down the indignation of every virtuous man, in regard to which the legislature have not thought society would be much aided by having the delinquents indicted; they are left to the correction of the religious and moral influence of society itself. We think that the judgment was right, and so it must be certified.

Per Curiam, Ordered to be certified accordingly..