State v. Everhardt

• Decision Date: 30 November 1932
• Docket Number: 504.
• Citation: 166 S.E. 738,203 N.C. 610
• Parties: STATE v. EVERHARDT.
• Court: North Carolina Supreme Court

166 S.E. 738

203 N.C. 610

STATE v. EVERHARDT.

No. 504.

Supreme Court of North Carolina

November 30, 1932

Appeal from Superior Court, Rowan County; Schenck, Judge.

Mrs. M M. Everhardt was convicted of maintaining a common nuisance and she appeals.

No error.

The defendant was indicted and convicted under the following bill of indictment:

"The jurors for the State upon their oath present, That Mrs. M M. Everhardt, late of the County of Rowan, on the 1st day of December, in the year of our Lord one thousand nine hundred and thirty-one, with force and arms, at and on various other times, both before and since the taking of this inquisition, and in the County aforesaid, unlawfully, wilfully did create, maintain, permit and allow a common nuisance at and in a certain building then and there owned and controlled by her, said building being situate on State Highway #15, in North Carolina and in Rowan County, and near the Town of Landis, in State and County aforesaid, by causing, allowing and permitting great concourse and promiscuous crowds of people, men and women, to congregate and assemble in said building, and then and there, in the presence, and in the hearing of divers other good citizens there living and assembled, and in the presence and in the hearing of divers other good citizens then and there passing and re-passing, in the night-time, and into the late and unreasonable hours of the night-time, the said crowd of promiscuous people would assemble and congregate, and there riotously and boisterously dance, sing, holler, and use all kinds of vulgar, loud and profane language when and while many of the said crowd so congregated and assembled in the aforesaid building then and there belonging to and controlled by the said Mrs. M. M. Everhardt, would be highly intoxicated, hilarious, rowdy and drunk, and the said unlawful conduct then and there continued for 15 minutes and more at the time and for many hours at the time and all such conduct would continue for hours at the time in the presence of and in the hearing of divers good citizens living near to the said building and in the hearing of good citizens then and there passing and re-passing, all to the great disturbance and annoyance and to the common nuisance of the said good citizens then and there being and passing and re-passing, against the form of the statute in such case made and provided, and against the peace and dignity of the State.Zeb.V.Long, Solicitor."

The evidence on the part of the state was to the effect that about 15 or 20 yards from state highway No. 15, between the towns of China Grove and Landis, defendant operated a "Dance Hall" most every night.On several occasions Mrs. Everhardt "had charge of the dances; she collected the fees at the door."On another occasion "there was a young man selling the tickets, but Mrs. Everhardt was taking the money over."Five or six families live in the immediate neighborhood.At times there was noisy and boisterous conduct of those present in regard to drinking, immorality, cursing, scrapping, etc.The cursing was so loud as to be heard on the highway.On several occasions women were seen to "go on the outside just outside and just back of the dance hall and expose themselves in the presence of men;" also as to cursing "this was loud enough to be heard to those passing upon the highway, there have been times it could be heard probably a quarter of a mile.Prior to December 1st the dances were held twice a week, in the night-time, since that time they have been once a week--Saturday nights."

The testimony of one of the witnesses as to the conduct of the "overflow" on his premises is unmentionable.He also said, in part: "Yes, sir, The noises I heard were very loud; they could be easily understood in my study, two or three blocks off, if it was blocked off.It was more the nature of cursing, swearing, loud, boisterous noise in general that disturbed me. *** Yes, sir.The general reputation of this house in the community is bad."

D. C. Pethel testified, in part: "I have observed the conduct at the place.I have been down there on a few occasions and I would see parties come out of the dance hall; they would hardly get out of the light until they would begin to drink, get out their bottles.It was a few feet off the highway when I saw that.People on the highway could observe these things if they had been walking or going real slow, if looking over that way.Just to the rear of the dance hall, I would say not over 10 or 12 feet from the back end of the dance hall, I have seen immoral conduct.Also, I have heard profane language used in front of the dance hall.It was loud enough to be heard by persons upon the highway.I have seen immoral conduct by the side of the highway, just this side of it, 10 or 12 feet from the hard surface."

J. P. Linn testified, in part: "That he lives at Landis, is a business man.I stopped at the dance hall one night.The dance was going on.It was possibly 11 o'clock.We parked in about 20 steps of the door, off the highway.I didn't see any misconduct while I was there, but just between dances quite a crowd came out of the door and they called on a fellow by the name of Buffalo.One Fellow said 'Buffalo, bring me a pint'; another fellow said 'Buffalo, bring me one.'The other fellow took the order for five pints.He went off in his car and came back in three to five minutes and went around the building and the crowd rushed around.I know the general reputation of this place in the community of Landis; it is bad.The place is about two blocks from the outside of the corporate limits of Landis.The population of Landis is 1,500; 500 school children."

J. R. Beaver, police officer at Landis, testified, in part: "I have seen drunks on the outside there about every night they have had a dance.I have seen girls expose themselves before men back of the dance hall.I have seen drunks on the highway and outside of the dance hall; men drunk, and I have seen girls drunk.I have seen fights.I have heard cursing.The majority of the cursing and drinking and drunks has been from on the highway to 10 or 15 feet back.The crowd stays in front of the dance hall.It aint over thirty feet from the hard surface to the dance hall door."

It was in evidence that one Brown was shot by one Wyche there.People came to the dances from Albemarle, Taylorsville, Kannapolis, High Point, Salisbury, and other places.

There was other evidence of like tenor.The sheriff of Rowan testified: "I know the general reputation in the community of this dance hall; it is bad."The police officer of China Grove testified, in part: "I am familiar with the general reputation of this house in the community.The general reputation, the people I hear talk about it, claim it is a mighty bad place."There was other evidence as to the general reputation of the place being bad.

Defendant, on the other hand, denied her guilt, and proved by several witnesses her good character.It was in evidence that the premises were lighted up, 25 or 30 lights in the grove, about 30 lights in the filling station.A part of the time complained of the "Dance Hall" was rented to and run by one Murphy, Z. S. Carson, Bud Goodman, C. E. Jordan, and Z. V. Widenhouse.There was evidence in denial of the state's evidence.There was evidence on the part of defendant that "Jordan, Widenhouse and Mrs. Everhardt had charge."

The jury brought in a verdict of "Guilty," with recommendation of mercy.Judgment: "The judgment of the Court is that the defendant pay a fine of $50.00 and the costs of this action."The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court.The material excerpts and assignments of error will be considered in the opinion.

R. Lee Wright, of Salisbury, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

CLARKSON J.

In apt time, and before pleading to the bill of indictment, and before the jury was impaneled, the defendant made a motion (1) to quash the bill of indictment; (2) plea in abatement and to jurisdiction.State v. Oliver,186 N.C. 329, 119 S.E. 370;State v. Mitchem,188 N.C. 608, 125 S.E. 190;State v. Ritter,199 N.C. 116, 154 S.E. 62;State v. Ellis,200 N.C. 77, 156 S.E. 157.

One of the material contentions of the defendant is that the bill of indictment is defective, "for the reason that the law requires the bill of indictment to set out in detail the profanity charged to have been used, the words, the acts, the conduct and the matters and things which the State contends constituted a nuisance."

C. S. § 4613, is as follows: "In all indictments when further information not required to be set out therein is desirable for the better defense of the accused, the court, upon motion, may, in its discretion, require the solicitor to furnish a bill of particulars of such matters."

C. S. § 4623: "Every criminal proceeding by warrant, indictment, information, or impeachment is sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment."

In State v. Beal,199 N.C. at page 294, 154 S.E. 604 613, is the following: "The office of a bill of particulars is to advise the court, and more particularly the accused, of the specific occurrences intended to be investigated on the trial, and to regulate the course of the evidence by limiting it to the matters and things stated therein.C. S. § 4613;McDonald v. People,126 Ill. 150, 18 N.E. 817...