31 N.C. 38 | N.C. | 1848
(39) This was an indictment for a common nuisance. It appeared on the trial of this prosecution that a quarrel took place in Madison, a village of Rockingham, between the defendant and another individual; that the defendant was drinking, and after the quarrel and separation of the parties he cursed and swore in a loud tone of voice for some time; that he used very profane language, calling the name of Almighty God in vain; that his especial abuse was directed at the individual in question, and his family; that the house of the said individual was situated two hundred yards from where the defendant was; that the said individual and his family were disturbed thereby; that so loud was the cursing and profane swearing of the defendant, he was heard throughout the said village, and that his conduct was well calculated to disturb the citizens thereof.
The court charged the jury, if they believed the witnesses, they ought to convict the defendant. The jury returned a verdict of guilty. The defendant moved for a new trial because of misdirection, which was refused. Judgment was pronounced, and the defendant appealed. The indictment in this case charges "that James A. Jones, late of, etc., at, etc., in said county, on 25 March, 1848, did publicly curse and swear and take the name of Almighty God in vain, for a long time, to wit, for the space of two hours, to the common nuisance of all the citizens of the State, and against the peace and dignity of the State." The indictment further charged the defendant with going armed with a loaded gun during the same time. The defendant was convicted.
For single acts of profane swearing the laws of this (40) State have provided a remedy which is, by the legislative power, deemed adequate to its punishment, to wit, a fine for each act, to be imposed by a single magistrate, upon conviction before him. Rev. St., ch. 118, sec. 2. To render the crime indictable the acts must be so repeated and public as to become an annoyance and inconvenience to the public, for they then constitute a public nuisance. S. v. Ellar,
The indictment further charges that the defendant "did then and there go armed with and carry a certain gun, loaded with powder and lead, to the great terror of all the good (42) citizens then and there assembled." Upon this charge no evidence was given.
The appeal in this case was for error in the charge of his Honor, the presiding judge. For the same reason upon which we have held the indictment insufficient we must hold the evidence did not establish an indictable offense.
Judgment must, therefore, be reversed, and a venire de novo awarded.
PER CURIAM. Ordered to be certified accordingly.
Cited: S. v. Pepper,