
    Dunnaway vs. The State.
    The defendant was indicted for keeping “a disprderly common tippling house.” The jury found aspecial verdict “that the defendant on one occasion kept a house in which there was a collection of twenty or thirty negroes more than belonged to the place, who got drunk, danced, and disturbed the neighborhood with noise and uproar.” Held; that the facts fgund by the special verdict, did not consitute the offence of keeping “a disorderly common tippling house.”
    To constitute a common tippling house of a disorderly character, thpre must be more than one act of tipling and disorder.
    The plaintiff in error was indicted for keeping “a disorderly common tipling house.” The jury found a special ver-diet “that the defendant on one occasion kept a house in which there was a collection of twenty or thirty negroes more than belonged to the place where he lived, who got drunk, danced and disturbed the neighborhood with noise and uproar” &c. The defendant moved the court in arrest of judgment, büt his motion was overruled and judgment was rendered against him on the verdict.
    . M. H. Ewing for plaintiff in error.
    The charge was for beeping a “disorderly tippling house;” upon this finding there could not be a judgment for keeping a disorderly house, the charge is notdivisible, for “disorderly” and “tippling” are not here adjectives qualifying the word “house,” but disorderly is the adjective qualifying the compound substantive “tipling house.” Does “common” here qualify house, or “tipling-house,’ if the former we have an indictment for keep--ing-a common house; if it does not qualify house, neither does it “disorderly”. 2. Roscoe Cr. Evi. page 75.
    One scene of disorder does not make a disorderly house. See Roscoe’s Cr. Evi. page 663. Tipton v. State, 2. Yerg. 542. Brooks v. State, 2 Yerg. 482.
    
      G. S. Ferger,- Attorney General, for the State.
    The charge in the indictment and the’ special verdict, in substance amounts to a common nuisance, and as such it is indictable. . It does not require repeated acts of disorder and' violence to make a common nuisance. See 1 Hawkins 692. Nolinv. Mayor of Franklin, 4 Yerg. Rep. 163. Rex v. Smith 1 Strange Rep. 704. J’Jlnson, v. Stuart, 1 T. Rep. 754, 1 Russell 270, 271 Crundums case, 2 Campbell 89'. Roscoe Cr. Ev. 658. Merris’ case, 3 Bar v. Adolphus 148 13 Com. Law. Rep. 52. Again, the words “common and tipling” may be rejected; then the indictment would be for keeping a “disorderly house.” In such case judgment may’ be pronounced on the finding.
   Green J.

deli vered theopinion of the court.

The court erred in rendering the judgment in this case; 1st. The charge is, that the defendant kept a tipling house? and-that it was of a disorderly character, but the jury do nofr find that he kept a tipling house at all, therefore the.court could not rightfully pronounce, that he kept a disorderly tipling house, 's argued that as the negroes got drunk there, we must presume it was a tipling house. The sale of spirituos liquors by less quantities than a quart without license, constitutes a tip-ling house. How can we know that spirituous liquors were not purchased elsewhere, and brought to the house of defendant to be drunk, or that the liquor was not given to the ne-groes? There is nothing in thiá verdict to justify the court in assuming that a tipling house was kept for this reason, therefore the verdict is not broad enough to authorise a judgment upon this indictment.

2nd. But the charge is, that it was a ‘‘disorderly common tippling house.” To constitute a l‘common tippling house of a disorderly character” there must be more than one act of tipling and disorder. Roscoe Crim. Ev.663. As therefore the verdict finds only one act of this kind, it does not authorise a judgment on this indiciment.

But it is argued, that reject the word, “common” and “tip* ling” and then the indictment will be for keeping a “disorderly house” and that the proof supports this charge. In the first place, I know of no authority for sustaining an indictment against a man for keeping a “disorderly house” simply, but if that could be done, the charge in this indictment cannot be divided in this way. For the charge is, that hé kept a common tipling house, now reject ‘tipling’ and you have him charged with keeping a “common house,” which cannot be the meaning of the language. It is therefore apparent that the adjectives “disorderly” and “common” qualify the compound substantive, “tippling house.” This word then, cannot be divided, and hence it was indispensable that the jury should have found that a tipling house was kept. Let the judgment be reversed.

Judgment reversed.  