¶1 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.”
¶2 The question is, whether any crime is charged; whether profane swearing in public, is, of itself, a nuisance ?
¶3*69 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 beard art the distance of two or three hundred yards, and from dark until 11 o’clock at night; and that persons in the street and houses heard him.” 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.
¶4 It is true that, in the conclusion of |he indictment, it is al-, leged that what the defendant did was,‘“’to the common nuisance of the good people of the State then and there being and residing;” 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.
¶5 .Suppose the indictment had charged, that the defendant publicly smoked & segar in the street, &c., .to the common nuisance, &c.
¶6 We 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.
¶7 In 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.
¶8 This will be certified that the j udgment may be arrested.
¶9 Pee Citeiah. Judgment arrested.