
    Hunter against The Commonwealth.
    Keeping a disorderly house is not an indictable of-fence, unless it be laid as a common nuisance. Therefore a verdict of guilty of “keeping a disorderly house, and disturbing his neighbours,” is bad.
    In Error.
    UPON a writ of error to the Quarter Sessions of Philadelphia county, it appeared, that Hunter had been indicted in that Court, for that he “ did keep and maintain a certain “ common, ill-governed, and disorderly house, and in his said “ house, for his own lucre and gain, certain persons, as well “ men as women, of evil name and fame, and of dishonest “ conversation, to frequent and come together, unlawfully and “ wilfully did cause and procure, and the said men and women “ in his said house, at unlawful times, as well in the night as “ day, to be and remain, drinking, tippling, and misbehaving “ themselves, unlawfully and wilfully did permit, to the great “ damage and common nuisance of all the leige citizens,” &c. &c.
    The jury found him “ guilty of keeping a disorderly house “ and disturbing his neighbours.”
    Kittera, for the plaintiff in error,
    now contended, that the finding was erroneous, first, because the defendant was found guilty of what was not an indictable offence ; and secondly, because he was found guilty of an offence for which he was not indicted. The indictment was for a common nuisance, by keeping a disorderly house, and all the facts there stated, taken together, constituted that offence. This was the ground upon which a similar indictment was sustained in The Commonwealth v. Stewart. What the jury have not found they have negatived. They have not found the defendant guilty of a common nuisance, and have, therefore, acquitted him of that charge. They have merely found him guilty of keeping a disorderly house, which, alone, is not indictable; and of disturbing his neighbours, which is not charged, and which does not amount to a common nuisance. He cited 1 Hawk. ch. 74. s. 1. 3 Bac. Ab. 555. Indictment, G. 2 Str. 1247. 1 Bac. Ab. 509, Barrator, A. 5 Bac. Ab. 151. Nuisance, B.
    
    
      A. S. Coxe, for the commonwealth,
    answered, that the jury evidently meant to find the defendant guilty of the crime for which he was indicted. It is not necessary, that every thing charged in the indictment should be found, Rex v. Woodfall,
      
       and keeping a disorderly house alone is indictable, Rex v. Thomas and wife.
      
       Having found that, therefore, they have found enough. But admitting it not to be an indictable offence, the finding is nevertheless good. The verdict must be referred to the indictment, and when the defendant is found guilty of keeping a disorderly house, the jury must be understood to mean such a disorderly house as is described in the indictment; viz. to the common nuisance of all leige citizens, &c. This construction of the verdict is sanctioned by that branch of it which relates to disturbing the neighbours, by which the jury plainly meant to declare, that the house was a nuisance.
    
      
       1 Serg. & Raw, 342.
    
    
      
      
         5 Burr. 2661.
    
    
      
      
        Cas. Temp. Hardw. 278.
      
    
   Tilqhman C. J.

(After stating the indictment.) It is not necessary that the jury should find a man guilty of every thing charged in the indictment. It is sufficient if they find him guilty of part, provided that part be an indictable offence. The keeping of a disorderly house is not indictable, unless it be laid as a common nuisance ; because a house may be disorderly without being injurious to any but its inhabitants; and it is the injury done to the public, which is the essence of the offence. But the jury have found, that he also disturbed his neighbours. That, however, is not the offence charged in the indictment. The charge is, that he kept a disorderly house, to the common nuisance, Ei?c. What was their reason for not saying, that it was a common nuisance, I know not; but as they did not think proper to find the defendant guilty generally, we must take it that he stands acquitted of every thing of which he was not found guilty. They have in fact found him guilty of no part of the matter charged in the indictment, but the keeping of a disorderly house, which is not alone indictable. I am of opinion, therefore, that the judgment which was given on this verdict against Edward Hunter, was erroneous and should be reversed.

Yeates J. concurred.

Brackenridge J. who was absent on account of sickness, gave no opinion.

Judgment reversed.  