
    Hutchison vs. The State.
    1. A single act of open public notorious drunkenness is not indictable.
    
      2. A charge of drunkenness on a specified day and on divers other days and times not specified, is legally a charge of a single act of drunkenness.
    The grand jury at the August term of the Circuit Court, held for the county of Hickman, in 1844, presented Hutchison for drunkenness. The indictment charges, that Hutchison, on the 12th day of August, 1844, and on divers other.days and times before and since that day, in the county of Hickman, was unlawfully, openly, notoriously and publicly drunk, to the com-mpn nuisance of. all the good citizens of the State, then and there residing, being, passing and repassing to the great corruption of the public morals, to the evil example, &c. &c.
    The case was tried by J udge Dillahunty and a jury of Hickman county, in December 1844.
    The State proved that the defendant was drunk in the streets of Centreville, in the county of Hickman, on the day mentioned in the indictment. There was a large crowd present witnessing his drunkenness. It also appeared, that the defendant had often and before that time been drunk in public; that the defendant was noisy whilst getting drunk, and after becoming fully intoxicated, he fell down in the street and went to sleep.
    The J udge charged the jury, that however much the acts of the General Assembly legalising drunkenness, in any shape, may be regretted by those who have witnessed the happy effects on the public morals, resulting from the enforcement of the common law, yet, as the law now stands, no man can be indicted or presented for a single act of drunkenness, however gross it may be, if no other offence of an indictable grade be committed at the same time. But as to habitual drunkenness the law is the same now that it was before the passage of the late statutes on the subject of drunkenness. If the jury should, therefore, be of the opinion that the defendant had been openly, publicly and notoriously drunk at other times before the day he committed the offence for which he is presented, and in the county of Hickman, that they should find him guilty. But if he had been drunk a single time only, they would find him not guilty.
    
      The jury returned a verdict of guilty and the Judge (a motion for a new trial and in arrest of judgment having been overruled) fined the defendant five dollars. He appealed.
    
      Nicholson, for the plaintiff in error.
    He cited the act passed on the 1st day of February, 1842, and the act passed on the 15th January, 1844, which declare, that no person “shall be subject to presentment or indictment for single acts of intoxication or drunkenness, unless he shall, whilst so intoxicated, commit some other indictable offence;” and contended that they embraced and controjjedLike, .present case.
    
      Attorney General, for the State.
    Russel declares, that “it is an establis| whatever openly outrages decency, and is : lie morals is indictable.
    Offences which fill this outline come under thegSM?al classification of nuisances, but the facts which constitute them are in many cases sui generis.
    
    One offence coming under this general head is, running through the streets or highways naked.
    Another is exhibiting a dead body for money.
    Another is selling a wife at auction. 3 Burrow, 1438.
    Another is the being a common scold. 12 Serg. & Raw. 220.
    Another is making a great noise with a speaking trumpet. 1 Strange, 704.
    Another is keeping many dogs, which made great and disturbing noises. 2 Chitty C. L. 646.
    Another is exposing an obscene print to the public view. 4 Burrow, 2527. The mere possession o.f it would not be indictable.
    A single act of private fornication is punishable by statute, by a Justice of the Peace, and is not indictable. Yet who would say, that if the act was perpetrated in the streets in the view of the citizens, it would not be indictable on the grounds stated by Russell, to wit, because “it openly outrages decency and is injurious to public morals?” So repeated acts of private fornication, amounting to living in adultery, constitute a distinct offence and is indictable, (2 Hump. 414,) no matter with what privacy such adulterous intercourse is carried on. This offence is grounded on different considerations from that of public fornication; so the frequenting, privately, bawdy houses, is not indictable, though the offender is liable to be bound over to keep the peace by statute of 4th Edward. Yet if such frequenting be open, public and notorious, it becomes indictable. 2 Ld. Raymond, 1197. 2 Yerg. 483. This offence is a nuisance. 1 Hawkins, ch. 74. See 3 Hum. 203.
    Chief Baron McDonald says, “whatever place becomes the habitation of civilized man, there the laws of decency must be enforced.” 1 Russell, 271.
    Although the legislature may have legalised a single act of private drunkenness, it is contended that repeated acts of open, notorious, public drunkenness constitute a different offence, of a higher grade of criminality, which does not come within the words of the statute. In the case of Tipton vs. The State, (2 Yerg. 542,) Judge White states, that an allegation that the defendant was openly and notoriously drunk on a given day, and and on divers other days and times, is in effect an allegation that the defendant was a common drunkard and a nuisance to society. Is not open, public, habitual drunkenness, grossly injurious to public morals and an outrage on decency? All mankind would agree that it is.
    It is insisted, that a statute intended to repeal a part of the common law shall be so construed as to repeal it no further than its express words indicate the clear intention of the law makers. 3 Tomlin, 524. Bacon, title, Statute.
   By the Court.

There is no offence against the laws of Tennessee charged in this case. Let the judgment be arrested and the defendant discharged.  