
    Price v. The State.
    
      Indictment for Keepinf Disorderly House.
    
    1. Keeping a disorderly house is. a tfoisderaeanor. — Keeping a disorderly house was a public nuisance art common law, and is a misdemeanor, though not made so by statute.
    2. Some ; sufficiency of indictment. — Th&b the defendant was guilty of the offense of keeping a disorderly-house-is sufficiently alleged by an indictment charging that he “did Keep a disorderly, public and ill-governed house, and did, then and there, unlawfully cause and procure certain persons, as well women ' as men, of evil name and fame to frequent and come together, in ids said house at many unlawful times, as well in the night as in the day, and did permit them there to be and remain drinking, tippling, carousing, cursing, swearing, indecently dancing, and misbehaving, themselves, to the great damage, and common nuisance, and eviTexample of all the citizens, not only of the neighborhood, but of all the citizens of the county,” &c.
    3. Same; constituents of offense. — A conviction can be had for keeping a disorderly house, if the acts done;. therein or thereabouts by the persons resorting to tne house from time to time, by the invitation or permission of the keeper of the house, are of such character as to be injurious to public morals, or convenience, or safety, or tend to annoy or disturb one or more persons in .the? neighborhood; though the disorderly practices do not disturb the public peace or the quiet of the whole neighborhood; though only one person in the neighborhood or community is disturbed or annoyed; .though the indecency or disorderly conduct is not perceptible fromdlie outside; though the keeper of the house does not know the reputation of the persons who resort to it; and though he attempts to prevent disorderly conduct or misbehavior.
    4. Former conviction of another sejiarate and distinct offense no bar to prosecution. — While the defendant, in keeping a disorderly house, may at the same time have violated the law against keeping open store on Sunday, yet the two offenses are sepárate and distinct, and a conviction of the latter offense can not be pleaded in bar of a prosecution for the former.
    
      Appeal from tbe City Court of .Mobile.
    Tried before tbe Hon. O. J. Semmes.
    Tbe opinion sufficiently describes tbe indictment, and also tbe plea of former conviction, to wbicb a demurrer was sustained. Tbe trial was bad upon issue joined on tbe plea of not guilty.
    It was shown on tbe trial, as appears from tbe bill of exceptions, that tbe defendant kept wbat is known as a “barrel bouse,” on Davis Avenue, a public street in tbe county of Mobile, but not witbin tbe limits of tbe city of Mobile. He. bad a license to carry on at that place tbe business of a retail dealer in vinous or spirituous liquors. Tbe bouse was immediately next to tbe street, and bad two rooms, witb a door opening from one to tbe other. Tbe front room was used as a bar-room, and was spoken of by tbe witnesses as “tbe barrel bouse.” Tbe rear room was used as a dance ball. There were music and dancing in this ball once or twice every week. Often, on such occasions, as many as thirty or forty persons, men and women, were there, drinking and dancing until late at night. When dancing was going on, both men and women would go back and forth between tbe barrel bouse and tbe dance ball, and sometimes persons of both sexes would get drunk while in tbe bouse. Drunken men and women were seen near tbe place. There was another saloon in tbe neighborhood. There was evidence that persons in tbe neighborhood beard men and women in tbe bouse shout, and curse, and use indecent language; and that men were seen lying drunk in a vacant lot adjoining tbe house. One witness who lived in tbe same neighborhood testified that be and bis family were disturbed by tbe noises proceeding from tbe barrel bouse late at night. Tbe evidence for tbe defendant tended to show that when be was present in tbe house be prevented disorderly conduct, and that be instructed bis employes, who were in charge during bis absence, not to allow any cursing or swearing, or any vulgarity or disorderly conduct.
    Tbe solicitor asked one of tbe witnesses for tbe State if tbe defendant, when at tbe bouse, ever sold any liquor to any of tbe persons there. Tbe defendant objected to tbe question as irrelevant and immaterial. Tbe court overruled tbe objection, and tbe defendant excepted. Another witness for tbe State was asked if be bad seen a number of people near tbe barrel bouse drunk. Tbe defendant objected to tbe question as irrelevant and immaterial. An exception was reserved to tbe overruling of this objection. Tbe witness answered that be bad. He was then asked by tbe solicitor if be bad seen a good many people go on tbe opposite side of tbe street to prevent passing tbe bouse. Tbe court sustained tbe defendant’s objection to tbis question. Tbe solicitor tben asked tbe- witness if be bad seen people walk on tbe other side of tbe street. Tbe defendant excepted to tbe action of tbe court in overruling bis objection to tbis question on tbe ground that it was irrelevant and immaterial. Tbe defendant also excepted to tbe action of tbe court in permitting a witness for. tbe State to testify that tbe general reputation of people wlxo visited tbe barrel bouse was bad.
    Tbe court orally charged tbe-jury, “that tbe gravamen of tbe offense with which the defendant is charged is keeping and maintaining a certain common, public, ill-governed and disorderly bouse, and that tbe-defendant unlawfully caused and procured for bis own lucre and gain certain persons of evil name and fame, and of dishonest conversation, to frequent and come together in bis-bouse, and to be and remain in bis bouse, drinking, tippling, and misbehaving themselves ; that -it was not necessary that all persons in the neighborhood, nor that a great many; should- have seen or heard of it; tbe question is, was tbe bouse of such a character that any citizen passing would have beefi annoyed by it, and was the annoyance of such a character that it would worry any person passing.” Tbe defendant excepted to that portion of tbis charge which is in italics. Tbe defendant also excepted to tbe following portion of tbe'fcharge given by tbe court of its own motion: “If tbe jury, believe from tbe evidence that tbe defendant kept tbe house, it is not necessary for them to find that all of tbe things alleged in tbe indictment were done, or occurred, if enough of tfie matters alleged occurred to constitute a nuisance.”
    Tbe defendant excepted to the refusal of tbe court to give tbe following, among other written charges requested by him : 1. “The court charges tlie jury, that if they believe all tbe evidence, tbe jury ought to find tbe defendant not guilty.” 2. “If tbe jury believe from tbe evidence that it has not been proven that defendant knew tbe reputation of those who came to tbe barrel bouse in question, and that it has not been proven that be :knew or intended that they should swear or disturb others whe.fi they got there or in leaving there, defendant is not' guilty, if tbe jury believe from the evidence that defendant used reasonable care to prevent such persons from doing wrong there.”
    
      Gbegoet L. & H. T. Smith, for appellant, cited Hickey v. State, 53 Ala, 518; Powell v. State, 89 Ala. 173.
    Wm. L. Martin, Attorney-General, for tbe State.
   STONE, 0. J.

Tbe maintenance of a public nuisance is 'an offense condemned and punished by tbe common law; and altbougb not declared by our statutes a misdemeanor, it is so regarded and acted upon in our jurisprudence. We must, therefore, look to tbe common law for the constituents of tbe crime. Among tbe many public nuisances, which were made indictable by tbe common law, is that of keeping a disorderly bouse. It is for this offense tbe appellee in tbe present case was indicted and convicted.

Tbe second count of tbe indictment, which contains substantially tbe averments of tbe two counts, charges that “Thomas Price did keep a disorderly, public and ill-governed bouse, and did then and there unlawfully cause and procure certain persons, as well women as men, of evil name and fame to frequent and come together, in bis said bouse at many unlawful times, as well in the night as in tbe day, and did permit them there to be and remain, drinking, tippling, carousing, swearing, indecently dancing, and misbehaving themselves, to tbe great damage, and common nuisance, and evil example of all tbe citizens, not only of tbe neighborhood, but all tbe citizens of tbe county,” &c. Tbe indictment sufficiently charges tbe offense of keeping a disorderly bouse.

Tbe demurrer to tbe defendant’s plea of former conviction was properly sustained. As shown by said plea, tbe offense for which the defendant was formerly prosecuted and convicted was for violating tbe Sunday iaws. This offense is made punishable by statute, and is separate and distinct from tbe offense for which tbe defendant was indicted in this case. While in' keeping and maintaining a disorderly bouse tbe defendant may have violated tbe Sunday laws of this State on one or more occasions, this violation on one or more Sabbaths could not amount to tbe keeping of a disorderly bouse in such sort as to merge the two separate offenses in one. Nor could tbe conviction for tbe one be pleaded in defense of a prosecution for tbe other.

A disorderly bouse has been defined, in general terms, to be “a bouse or other place to which people resort, to tbe disturbance of tbe neighborhood.” — 1 Bisb. Or. Law, § 1046. In Hickey v. State, 53 Ala. 514, this court defines tbe elements necessary to constitute a bouse disorderly, in tbe following language : “That such a bouse is a resort, and criminal practices are tliere pursued, offending tbe moral sense, and endangering tbe security .'of person or property, fixes its character as a public nuisance. It may not be strictly a disorderly bouse; tlie‘.quiet of tbe locality may be unbroken; tbe common injury “flows -from tbe evil influence it exerts — from tbe temptations and opportunities for tbe commission of crime it affords.” We conclude, therefore, that to sustain a conviction of the offense we are discussing, it is not essential that there should be any disorder or dis-. turbanee in tbe sense that it disturbs tbe public peace or tbe quiet of tbe whole neighborhood. It is enough that tbe acts done at such bouse are of tbe character charged, and contrary to law and subversive of public morals. The result is tbe same, whether thelhnlawful acts are denounced by tiie common law or by statute. — Hickey v. State, 53 Ala. 511; Cheek v. Com., 79 Ky. 359,; Thatcher v. State, 48 Ark. 60; State v. Williams, 30 N. J. Law, 104; 5 Amer. & Eng. Encyc. of Law, p. 693. Under tbe principles announced, tbe several portions of tbe testimony objected to by defendant were properly admitted. The defendant’s objections to different parts of tbe testimony were also correctly overruled for tbe further reason, ipaat smch evidence tended to show defendant’s knowledge óf and connection with tbe disorderly bouse.

A conviction for keeping ajjisorderly bouse can be had on proof that only one person in tbe neighborhood or community was disturbed or annoyed, if tbe acts done therein or thereabouts were of such .¿liaracter as would tend to annoy all good citizens; and 'this,' although there was no evidence of any indecency or disorderly conduct being perceptible from tbe exterior of .the bouse. — Com. v. Hopkins, 133 Mass. 381; s. c., 48 Amer. Rep. 527; 5 Amer. & Eng. Encyc. Law, p. 694. There was”no error in tbe two charges given by tbe court; nor in the-refusal of tbe court to give the first two charges asked by’defendant.

To sustain an indictment for keeping a disorderly bouse, it is not necessary that tbe defendant should know tbe reputation of tbe persons who came to bis bouse, nor is it essential that be knew or intended that they should so misbehave as to annoy or disturb others. — Intention is no element of tbe offense. Tbe indictment is sustained by proof of facts that show tbe defendant kept "a public bouse; that by bis invitation or permission persons came to said bouse from time to time, and while there indulged in practices that are injurious to public morals, or',’ health, or convenience, or safety; or do snob things as will annoy and disturb one or more persons in the neighborhood or community. Nor is it a defense to such indictment, that the keeper of the house attempted to prevent any disorderly conduct or misbehavior. Com. v. Cobb, 120 Mass. 356. Eor these reasons, as well as others, the court properly refused to give the third charge requested by defendant. The refusal could also have been based on the ground that the charge was misleading.

We discover no error in the record, and the judgment is affirmed.  