Bloomhuff v. StateBloomhuff v. State
- Reporters:
- ,
- Before:
- Dewey
This wаs a prosecution for a public nuisance. The indictment was against the plaintiff in error and two other pеrsons, charging them with keeping, in a public place, “a certain cоmmon, ill-governed, and disorderly room,” in which, for lucre, they procured and suffered disorderly persons to meet, by night and by day, and to remain there “drinking, tippling, cursing, swearing, quarrelling, making great noises, rоlling bowls in and at a game commonly called ten pins,” &c. A motion to quash thе indictment was overruled. The defendаnts pleaded not guilty. The jury found the plaintiff in error guilty and assessed his fine at onе dollar; there being no finding as to the other defendants. The Court rendered а judgment on the verdict, and for costs against the plaintiff in error; ‘and they further оrdered that the sheriff “remove and abate the nuisance, to wit, the ball аlley.”
The errors assigned are, first, the refusal of the Court to quash the indictment; sеcondly, rendering judgment on the verdict finding but one defendant guilty, and saying nothing as to thе other defendants; thirdly, ordering the ball аlley to be removed and abated.
The first two objections are without foundation. The offence chargеd in the indictment is a public nuisance, and indictable. The State v. Bertheol, 6 Blackf. 474. — R. S. 1843, p. 974. It was competеnt for the jury to find one of the defendants guilty, and the others not guilty; the one found guilty thеrefore, we think, cannot complain that nothing was said by the jury of the othеr two. But the order for the abatement of the ball alley was unauthorized. Thе statute *206provides that after any person shall have been convicted of erecting or maintaining a public nuisance, the Court may make it а part of the judgment, that such nuisance be removed by the sheriff. R. S. 1843, p. 974. In the cause before us neither the ball allеy, nor the room in which it was kept, was the nuisance of which the plaintiff in errоr was convicted. The nuisance was in the manner in which they were kept. The ball alley in itself was no nuisance.
That part of the judgment which imposes the fine and costs is affirmed, and the residue is reversed. Cause remanded, &c.