State v. Kirby, 5 N.C. 254, 1 Mur. 254 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 254, 1 Mur. 254

The State v. Kirby.

"J V From Stokes. J

Profane swearing, independent of the disturbance and injury which it may produce to those who hear it, is not indictable ; it is cognizable before a justice of the peace, under the act of If41, ch. 14: but where it is charged as a nuisance, and there is evidence to support the charge, it is indictable. ^Therefore,

A motion to arrest the judgment, upon an indictment which charged, “ that the Defendant swore several oaths in the court-yard during the sitting of the Court, to the great disturbance and common nuisance of the citizens necessarily attending said Court,” was overruled,

It was charged in the indictment, that the Defendant swore several oaths in the Court-yard, during the sitting of the Court, to the great disturbance and common nuisance of the citizens necessarily attending said Court. The Defendant submitted, and a motion was made to arrest the judgment, on the ground that the facts thus charged do not constitute an indictable offence.

Locke, Judge,

delivered the opinion of the Court:

We are of opinion, that although profane swearing, of itself, and independent of the disturbance and injury which it may produce to those who hear it, may not form the subject of an indictment, but is cognizable before a justice of the peace, under the act of 1741, ch. 14: Yet wherever the bill charges the swearing as a -nuisance, and there is evidence to satisfy a Jury that it has produced this effect, we can discover no reason- why the offence should not be indictable. The Defendant, then, having submitted to this charge, is to be viewed in the same light as if satisfactory .evidence had been adduced to the Jury, and they had found him guilty of the nuisance charged in the bill. Reasons in arrest of judgment overruled. „