State v. . McNinch , 87 N.C. 567 ( 1882 )

The defendants justified their act of arresting the prosecutor under the common law and an ordinance of the city of Charlotte. His Honor charged the jury that the guilt of the defendants depended upon the question whether the place where the prosecutor was arrested was a public place, and that if in order to view or see the prosecutor, it was necessary for the citizens to go to the windows, then it would not be a public place. The charge is erroneous. His Honor in making it seems to have had in his mind the crime of nuisance at common law, but the ordinance of the city was evidently (570) intended to create different offences from that. It was a police regulation adopted, not merely to secure the citizens of the city against annoyance, but to prevent the evil example of such immoral conduct.

The ordinance embraces two offences, loud and profane swearing and public drunkenness. To make these criminal offences, it is not necessary they should be committed in a public place. There is nothing in the ordinance about a "public place."

His Honor did not seem to consider the difference between public drunkenness and drunkenness in a public place. A man may be publicly drunk in a private place. If for instance the prosecutor had remained in Sneider's bar-room and had been seen there by several persons, he would be said to be publicly drunk. And when he went to the back-yard of the bar-room in a state of drunkenness, and in that state was seen by several persons and was in full view of the dining-room of the hotel, only about eight steps distant, and the windows of a boarding-house, on the opposite side of the small square while the guests were at dinner, and indulged in loud and profane swearing, it was a violation of the ordinance and according to its provisions a misdemeanor, and the defendants were justified by it in making the arrest.

There is error. Let this be certified to the superior court of Mecklenburg that a venire de novo may be awarded.

Error. Venire de novo. Cited: S. v. Hunter, 106 N.C. 803; S. v. Earnhardt, 107 N.C. 790; S.v. Taylor, 133 N.C. 758; S. v. Myrick, 203 N.C. 9.

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