#### The State v. Henry Waller.

1 I From Edgecombe. J

Indictment charged, that Defendant was a common, gross, and notorious drunkard, and that he, on divers days and times, got grossly drunk.— Judgment arrested, for

Private drunkenness is no offence by our municipal laws. It becomes so, by being open and exposed to public view, so as to become anuisance. It must be so charged, and the Jury must so find it, before the Court can render Judgment.

The indictment charged, “that Henry Waller, late of “ the County of Edgecombe, yeoman, on the first day of “ January, in the year of our Lord one thousand eight “ hundred and seventeen, and on divers other clays and “ times, as well before as afterwards, was, and yet is, a *230 “ common, gross, and notorious drunkard, and that he, on “ ^10 sa^ ^anuaiT’ i*1 the year aforesaid, and e‘ on divers, other days and times,, in the County aforesaid, “ did then and there get grossly drunk, and. commit open “ and notorious drunkenness, contrary to morality, to the “ great displeasure of Almighty God, and to the evil ex- “ ample of all others in like cases offending, and against “ the peace and dignity of the State.”

The Defendant submitted, and it was moved in arrest of judgment, that the offence, as charged in the indictment, was not indictable; and the case being sent to this Court,

Henderson, Judge,

delivered the opinion of the Court:

Private drunkenness is no offence by our municipal laws. It becomes so by being open and exposed to public view, to that extent that it thereby becomes a nuisance, commune uocumentum ; and that is a question of fact to be tried by the Jury. There being no charge in this indictment to that effect, the Jury has not, and could not pass on it; which being of the very essence of the crime, the judgment must be arrested.