
    Smith vs. The State.
    An individual may be put upon his trial upon the presentment of a grand jury instead of an indictment.
    Drunkenness is an offence against good morals, and a single act is indictable.
    The presentment charged that Robert Smith was, on the 5th March, 1839, unlawfully, openly, publicly and notoriously drunk: Held, that this was an insufficient description of the offence, and that the presentment was bad.
    At the June term, 1838, of the circuit court of Knox county, the grand jury returned into op,en court a presentment against Robert Smith in the following words:
    
      “State of Tennessee, Knox county. June term, circuit court, 1838. The grand jurors for the State aforesaid, being, duly summoned, elected, sworn and charged to enquire for the body of the county of Knox aforesaid, upon their oaths and upon the information of Levi M’Cloud, one of their own body, present, that Robert Smith, late of said county, laborer, on the 5th day of March, in the year of our Lord eighteen hundred and thirty-eight, in said county, contriving and intending the morals and manners of the good people of said State to debauch and corrupt, was then and there unlawfully, openly, publicly and notoriously drunk, to the evil example of all others, .and against the peace and dignity of the State.”
    This presentment was signed by all the grand jurors. The defendant moved the court to quash the presentment, which the presiding judge, Scott, refused to do, and overruled the motion. The defendant then pleaded not guilty to the presentment, and was put upon his trial on an issue upon the plea. The jury not being able to agree, a mis-trial was entered by consent of parties, and defendant recognized to appear at the February term succeeding. At the February term the cause was submitted to a jury again, judge Keith presiding. M’Cloud, upon whose information the presentment was returned, was introduced, and testified that he had seen the defendant, Smith, drunk on the day mentioned in the presentment, at an election. He was then questioned as to whether he had ever seen the defendant drunk at any other time within twelve months immediately preceding the finding of the presentment. This question was objected to and overruled. M’Cloud then testified that he had seen him drunk upon another occasion. Other witnesses were introduced by the defendant, who testified that they had seen Smith on the occasion last referred to, and did not think him drunk.
    Judge Keith charged the jury that a single act of drunkenness was indictable, and if they were satisfied that he was drunk at either of the times mentioned by the witnesses they should find him guilty. The jury returned a verdict of guilty, and a motion for a new trial was made and overruled.
    The defendant then filed reasons in arrest of judgment as follows: 1. There is but one act of drunkenness charged in the presentment, and defendant is not charged with being a common nuisance. 2. The offence is not charged as an of-fence against public morals. 3. The offence is not charged to have been committed against the public peace.
    The motion in arrest of judgment was overruled, and the defendant sentenced to pay a fine of ten dollars and the cost of prosecution. He appealed in error to the supreme court.
    
      Nelson, for defendant in error.
    
      Attorney General, for the State.
   Green, J.

delivered the opinion of the court.

1. It is objected that the defendant was put upon his trial upon the presentment of the grand jury instead of an indictment. This practice has been so long followed in this State that it is now too late to question its legality, although it may nqt be sanctioned by established principles.

2. It is next insisted that the presentment is bad, because it charges the defendant with one act of drunkenness only; It is laid down in Blackstóne’s Commentaries that sobriety in public is a duty that every man owes to the community. It is therefore an offence to good morals for a man to be publicly drunk, and for this offence he may be indicted.

3. But it is further insisted that the offence is not sufficiently described in this presentment: and we think this objection is well taken. The facts constituting the offence must be set forth so that a defendant may understand the charge he is called upon to answer. 1 Chit. Cr. L. 231. This must be done with as much certainty as the nature of the case will admit. 1 Chit. Cr. L. 231. We think there is np such description of the offence in this case as would enable the plaintiff in error to defend himself by reason of this conviction, should he be called upon again to answer for the same thing. For this cause the judgment must be arrested. The difficulty of so describing a single act of drunkenness as to the party upon his defence and satisfy him of the facts that are to be proved against him is such, that notwithstanding we hold a single act of public and notorious drunkenness to be indictable, we think it always safest to charge the of-fence as in The State vs. Tipton, 2 Yerg. 342. Reverse the judgment.  