{
  "id": 8684327,
  "name": "STATE v. STEPHEN POWELL",
  "name_abbreviation": "State v. Powell",
  "decision_date": "1874-01",
  "docket_number": "",
  "first_page": "67",
  "last_page": "69",
  "citations": [
    {
      "type": "official",
      "cite": "70 N.C. 67"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "9 Ired, 38",
      "category": "reporters:state",
      "reporter": "Ired.",
      "case_ids": [
        8683921
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/31/0038-01"
      ]
    }
  ],
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  "last_updated": "2023-07-14T15:53:06.826178+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE v. STEPHEN POWELL."
    ],
    "opinions": [
      {
        "text": "Reade, J.\nThe charge in the indictment is, that the defendant did \u201c publicly, in the streets of the town of Lumberton, profanely curse and swear, and take the name of Almighty God in vain.\u201d\nThe question is, whether any crime is charged; whether profane swearing in public, is, of itself, a nuisance ?\nProfane swearing is irreligious beyond doubt. And it may be admitted to be immoral; and, to the refined, coarse and. vulgar. And very clearly it may be so used as to be a nuisance \u2014 as, for instance, if it be loud and continued. But nothing of the sort is charged in the indictment. It was indeed proved that the defendant used profane language \u201c so loudly that he could be beard art the distance of two or three hundred yards, and from dark until 11 o\u2019clock at night; and that persons in the street and houses heard him.\u201d And his Honor charged the jury that this was a nuisance. Take that to be so, but the misfortune is that nothing of the sort is charged in the indictment. And the probata cannot supply the w'ant of the-allegata. It is charged only, that he, cursed and swore publicly in the street; but whether in a whisper or \\ aloud; once or repeatedly; for a moment or an hour; or.,\" whether heard by any or many, is not charged.\nIt is true that, in the conclusion of |he indictment, it is al-, leged that what the defendant did was,\u2018\u201c\u2019to the common nuisance of the good people of the State then and there being and residing;\u201d but it is settled that a conclusion of that sort does not supply any defect in the main body of the allegation, 2 Bish. Crim. Prac. secs. 812-813.\n.Suppose the indictment had charged, that the defendant publicly smoked & segar in the street, &c., .to the common nuisance, &c.\nWe would have to hold that smoking a segar in the street is not a crime; and, therefore, that the defendant could not be convicted of a nuisance. Or, if charged with so misbehaving himself as to be a nuisance, without saying how he had misbehaved, or what he had done, so as to enable the Court to see that the misbehavior charged, if proved, amounted to a nuisance, we should have to hold that no crime was charged.\nIn State v. Pepper, lately before this Court, 68 N. C., the questions involved in this ease are so well considered that it is only necessary to refer to it as decisive of this case.\nThis will be certified that the j udgment may be arrested.\nPee Citeiah. Judgment arrested.",
        "type": "majority",
        "author": "Reade, J."
      }
    ],
    "attorneys": [
      "Battle Son, for defendant, submitted",
      "Attorney General Hargrove, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE v. STEPHEN POWELL.\nAn indictment, in which it is charged that the defendant \u201cdid profanely curse and swear, and take the name of Almighty God in vain,\u201d &c., \u201cto the common nuisance,\u201d &c., charges no offence, and cannot be sustained.\n{State v. Pepper, 68 hT. 0. Rep. 259, cited and approved.)\nINDICTMENT, for profane swearing, tried before Clarke, J., at the Fall Term, 1873, of Robeson Superior Court.\nThe defendant was charged, in the indictment, that he did, at divers times, in the streets of the town- of Lumberton, \u2018\u2018profanely curse and swear, and take the name of Almighty God in vain,\u201d concluding to the common nuisance, &c.\nIt was proved that the defendant was in the habit of using-profane language, so loud that he could be heard to a distance of 200 or 300 yards; that he would' curse on the streets front' dark until 10 o\u2019clock at night, and that persons in the streets and houses heard him; that he would curse and swear for two- or three hours at a time.\nHis Honor charged the jury, that if the defendant continu-' ously and habitually profanely cursed and swore, to- the nuisance and inconvenience of the neighbors, and to the disturbance of the good order and peace of the community, they would find him guilty.\nYerdict, guilty. Motion for a new trial; motion refused defendant appealed.\nBattle Son, for defendant, submitted\nThat the indictment was insufficient:\nBecause it does not charge the defendant to be a common and notorious profane swearer;\nBecause it does not charge, that there were any persons then and there assembled, to hear the profane swearing;\nBecause it does not state, that the profane swearing was in-hearing of any person. The case of the State v. Jones, 9 Ired, 38, and Pepper\u2019s case, 68 N. O. Rep. 259, will sustain the foregoing objections.\nAttorney General Hargrove, for the State."
  },
  "file_name": "0067-01",
  "first_page_order": 83,
  "last_page_order": 85
}