| Superior Court of New Hampshire | Jul 15, 1850
The demurrer raises the questions, whether keeping a disorderly house is an offence at common law, and whether the common law on this subject is in force here ; and whether the indictment is sufficient as to the time and as to setting forth the offence distinctly; and whether the second count is bad, on account of the omission of the allegation that the house was kept for gain or lucre.
As to the first point, it is not a question open to any doubt, that keeping a disorderly house is indictable at common law as a nuisance. It was expressly decided in Rex v. Higginson, 2 Burr. 1232, that such indictment was good. A precedent in the form used in this case is found in 2 Chitty’s Crim. Law, 40; and see Commonwealth v. Stewart, 1 Serg. & Rawle, 342, there cited; Cro. Cir. Comp. 523; Burn’s Justice, tit. Lewdness; Stephens v. Watson, 1 Salk. 45; Com. Dig., Jus. Peace, B. 25; Ros. Crim. Ev. 794; 1 Wheat. Crim. Cases, 290; State v. Clark, and State v. Bertheal, and Smith v. The Commonwealth, cited in 5 U. S. Dig. 462, and 8 U. S. Dig. 288.
We think there can be no doubt that this part of the common law is in force in this State. In our state of society the occasions for prosecutions under it have been rare, but no presumption can be admitted so inconsistent with human character, as
The allegation of the time, and the manner of stating the offence in this indictment is the same substantially as is found in Rex v. Higginson, 2 Burr. 1232; 2 Chitty’s Crim. Law, 40; Commonwealth v. Stewart, there cited, and Cro. Cir. Com. 523. The offence consists in the repetition of improper conduct.
We regard the omission of the allegation, that the respondent kept the house for gain or lucre, as not material. The substance of the offence is the keeping such a house as is a common nuisance to the community, and whether this is done for the motive of gain or for some other object is unimportant. In this respect we can see no difference between this case and the case of an indictment for keeping a brothel, a gaming-house, or any other disorderly house. They are all indictable on the same principle, to wit, that they are nuisances. In Jac. Law Diet, tit. Bawdy-house, is a precedent of an indictment for keeping such a house in which this averment is omitted.
Demurrer overruled.