Ehrlick v. Commonwealth

• Citation: 102 S.W. 289,125 Ky. 742
• Parties: EHRLICK v. COMMONWEALTH.
• Decision Date: 21 May 1907
• Court: Court of Appeals of Kentucky

102 S.W. 289

125 Ky. 742

EHRLICK v. COMMONWEALTH.

Court of Appeals of Kentucky.

May 21, 1907

Appeal from Circuit Court, Campbell County.

"To be officially reported."

George Ehrlick was convicted of maintaining a common nuisance, and appeals. Affirmed.

C. L Raison, Jr., for appellant.

N. B Hays, Atty. Gen., C. H. Morris, and N. L. South, for the Commonwealth.

O'REAR C.J.

Appellant was indicted for maintaining a common nuisance. The verdict of guilty fixed his punishment at $500 fine, in addition to which the court entered a judgment of abatement against him.

The indictment was in this language: "The grand jury of Campbell county, in the name and by the authority of the commonwealth of Kentucky, accuse George Ehrlick of the offense of maintaining a common nuisance, committed as follows, viz.: That the said George Ehrlick, on the ______ day of September, 1905, and within twelve months before the finding of this indictment, in the county aforesaid, and on divers other days and times, and from said ______ day of September, 1905, up to the time of the finding of this indictment, did willfully, knowingly, and unlawfully suffer and procure and permit divers idle and evil-disposed persons to habitually frequent and assemble in a certain room in his possession and under his control, and there to be, remain and habitually and unlawfully engage in the hazard of betting, winning, and losing money on horse races, and said room was by said Ehrlick kept and controlled for such purposes, and said Ehrlick was at all times hereinbefore mentioned operating in said room what is commonly known as a 'poolroom,' to the common nuisance and annoyance of all the good citizens of the commonwealth aforesaid then and there in the neighborhood passing and repassing, residing, and being, and having the right then and there to repass, reside, and be. That said room is located on lots 1, 2, 50, 51, 52, 53, and 54 of the Glenn Park Land Company's subdivision, in the district of Clifton, Campbell county, Kentucky, on the west side of the Alexandria Pike, south of the corporation line of the city of Newport. Against the peace and dignity of the commonwealth of Kentucky," etc.

Appellant complains that the indictment is not clear and direct as to the offense charged. There is but one offense charged, and that is correctly stated in the accusatory clause of the indictment. To properly state the offense, the facts showing it must also be stated, and, if an abatement is sought, a continuance of the nuisance must be alleged, as well, perhaps, as a description of the place where it is allowed. Commonwealth v. Enright, 14 Ky. Law Rep. 894; Commonwealth v. Megibben, 101 Ky. 195, 40 S.W. 694; Commonwealth v. City of Somerset, 14 Ky. Law Rep. 238; C. & O. Ry. Co. v. Commonwealth, 88 Ky. 368, 11 S.W. 87. It was therefore proper for the pleader to state in the indictment what particular acts he would rely upon to sustain the charge. Keeping a common gaming house, which is held to include poolrooms where betting on horse races is indulged (Bollinger v. Commonwealth, 98 Ky. 574, 35 S.W. 553; Commonwealth v. Simmonds, 79 Ky. 618; Brown v. State, 88 Tenn. 566, 13 S.W. 236; Swigart v. People, 154 Ill. 284, 40 N.E. 432), to which there is common resort for the purpose of betting, and at which money or other property is bet, won, or lost, is per se a nuisance at the common law. (1 Hawk. Pl. Cr. p. 733; Rex v. Dixon, 10 Mod. 335; Kneffler v. Commonwealth, 94 Ky. 359, 22 S.W. 446; Bollinger v. Commonwealth, supra). A nuisance per se is any act, or omission or use of property or thing, which is of itself hurtful to the health, tranquility, or morals, or outrages the decency, of the community. It is not permissible or excusable under any circumstances. Windfall Mfg. Co. v. Patterson, 148 Ind. 414, 47 N.E. 2, 37 L.R.A. 381, 62 Am.St.Rep. 532; 4 Bl. Com. 64; Russell on Crimes, 449. The indictment was in proper form. The demurrer to it was properly overruled. Bollinger v. Commonwealth, 98 Ky. 574, 35 S.W. 553.

A great deal of evidence was admitted on behalf of appellant tending to show that there was no noise or boisterous conduct at the house where this poolroom was conducted, but that, on the contrary, it was conducted with a care to keep down disorders, and to prevent minors, negroes, and women from coming into it. All this character of evidence was wholly immaterial. It ought not to have been admitted for any purpose. A poolroom might have been a nuisance because noisy, boisterous, fighting crowds were permitted to habitually gather and resort there; but that would have been a nuisance, whether betting was indulged or not. No such charge was made in the indictment in this case. Under a charge of maintaining a public or common nuisance, where the thing is per se a nuisance, such as a poolroom or other gaming house is, it is no defense that there was no noise or disturbance, nor that the community were not disturbed by its presence. Kneffler v. Commonwealth, 94 Ky. 359, 22 S.W. 446; King v. People, 83 N.Y. 589; Moses v. State, 58 Ind. 185; Seacord v. People, 121 Ill. 623, 13 N.E. 194. Nor was it necessary that the game should have been visible from the outside. State v. Mosby, 53 Mo.App. 571.

It is complained that there was no evidence of appellant's connection with the establishment as its proprietor to sustain the verdict and judgment against him. All who set up operate, or promote a common gaming house, including its employés, are guilty of maintaining the nuisance. Appellant was shown to have been usually present when the betting was going on, and was apparently in authority. Besides, he admitted his connection on more than one occasion, not including the proceedings in the police court noticed hereafter. The...