| Ill. | Jan 15, 1862
This indictment concludes, “ contrary to the form of the statute in such case made and provided.” This clearly designates it as a prosecution under the statute and not at the common law. When an indictment contains this conclusion, a recovery can only be had on a statutory offense. And if no statute exists creating the offense, then the indictment is vicious, and should be quashed on' motion, or a demurrer sustained if interposed. Such a motion was interposed and overruled. Without stopping to inquire whether the 10th section of article 13 of the constitution prohibits the city from adopting ordinances for the imprisonment of persons, or justices of the peace or police magistrates from committing them under such ordinances or a law of the State, we shall proceed to the consideration of the question whether the court below erred in refusing to quash the indictment.
In determining this question, it will become necessary to determine, whether the indictment describes any offensq, created by the statute. It is urged- that it may be sustained under the 127th section of the act regulating criminal jurisprudence. That section prohibits and defines the punishment of “ open lewdness, or other notorious act of public indecency, tending to debauch the public morals,” or the keeping open a tippling house on the Sabbath day or night, or maintaining or keeping a lewd house or place for the practice of fornication, or keeping a common ill-governed and disorderly house, to the encouragement of idleness, gaming, drinking, fornication or other misbehavior. The indictment was not designed to embrace any of these offenses, as it nowhere describes either of them. Nor can we perceive, notwithstanding there was undoubtedly disorderly conduct in this calaboose, that it was a tippling house, lewd house for the practice of fornication, or a common ill-governed and disorderly house, to the encouragement of idleness, gaming, drunkenness, fornication, or other misbehavior. Now the design in erecting and maintaining this building, however obnoxious and objectionable to the residents in the vicinity, was the very opposite of these misdemeanors. ' It was intended to reform by punishment, those confined in the building.
Then can it be sustained under the 134th section of the sanie act ? That section prohibits the obstruction or injury of public roads, bridges, navigable streams, so as to render them inconvenient or dangerous to pass; the erection or 'establishment of any offensive trade, manufacture or business, or to continue the same after it has been erected, or to pollute or obstruct any water-course, lake, pond, marsh or common sewer, so as to render the same offensive to the county, town, village or neighborhood. Whilst all these acts are designated nuisances, and although this calaboose may have been so managed or situated as to be a nuisance, still it is in nowise embraced or enumerated in this section. If an offense at all, it was so by the common law, and not by statute. And as the indictment concludes against the form of the statute, and there being no such statutory offense, the motion to quash should have been sustained. The judgment of the court below is therefore reversed.
Judgment reversed.