State v. Powell

• Decision Date: 31 January 1874
• Citation: 70 N.C. 67
• Court: North Carolina Supreme Court
• Parties: STATE v. STEPHEN POWELL.

70 N.C. 67

STATE

v.STEPHEN POWELL.

Supreme Court of North Carolina.

January Term, 1874.

An indictment, in which it is charged that the defendant “did profanely curse and swear, and take the name of Almighty God in vain,” &c., “to the common nuisance,” &c., charges no offence, and cannot be sustained.

( State v. Pepper, 68 N. C. Rep. 259, cited and approved.)

INDICTMENT, for profane swearing, tried before Clarke, J., at the Fall Term, 1873, of ROBESON Superior Court.

The defendant was charged, in the indictment, that he did, at divers times, in the streets of the town of Lumberton, “profanely curse and swear, and take the name of Almighty God in vain,” concluding to the common nuisance, &c.

It 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 from dark until 10 o'clock 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.

His Honor charged the jury, that if the defendant continuously 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.

Verdict, guilty. Motion for a new trial; motion refused; defendant appealed.

Battle & Son, for defendant , submitted

That the indictment was insufficient:

Because it does not charge the defendant to be a common and notorious profane swearer;

Because it does not charge, that there were any persons then and there assembled, to hear the profane swearing;

Because 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's case, 68 N. C. Rep. 259, will sustain the foregoing objections.

Attorney General Hargrove, for the State .

READE, J.

The charge in the indictment is, that the defendant did “publicly, in the streets of the town of Lumberton, profanely curse and swear, and take the name of Almighty God in vain.”

The question is, whether any crime is charged; whether profane swearing in public, is, of itself, a nuisance?

Profane 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--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 “so loudly that he could be heard at the distance of two or three hundred yards, and from...