merely to say that the name of the lottery is to the grand jury unknown. But in Massachusetts, where a statute made punishable "every person who shall, in any house, shop or building, owned or occupied by him or under his control, knowingly permit the setting up, managing or drawing of any such lottery," it was adjudged sufficient simply to aver that the defendant, in a house occupied by him, "did unlawfully and knowingly permit, in the dwelling-house and building then and there actually used and occupied by him, the setting up of a lottery in which certain articles of personal property and of value were disposed of by the way of a lottery." There was no need to say also that the lottery was not authorized by law, or to give its name, or describe the articles disposed of, or mention their value, or the names of their owners, or of the persons who received them as prizes. Further as to which question,

§ 965. Details in allegation of sale of tickets. It has been held sufficient to allege that, at a time and place specified, the defendant sold to a person named "a part of a ticket, to wit, one-quarter part of a ticket, in a certain lottery not authorized by the legislature of the state, without any description of the ticket or of the lottery to which it belonged. Even the name of the purchaser has been adjudged not necessary to be given.* But this sort of question is a little variable, depending on the special terms of the statute and the views of the particular tribunal.

§ 966. Evidence.

The tickets, on an indictment for selling
Printed envelopes for

them, should, if possible, be produted.

1P. v. Taylor, 3 Denio, 91, 99; [P. v. Wolff, 14 Ap. Div. 73, 43 N. Y. S. 421, 12 N. Y. Cr. R. 80; Bueno v. S., 40 Fla. 160, 23 S. R. 862; S. v. Martin, 68 N. H. 463, 44 Atl. R. 605.]

* Com. v. Horton, 2 Gray, 69. And see Com. v. Bierman, 13 Bush, 345; [Com. v. Sullivan, 146 Mass. 142, 15 N. E. R. 491.]

3 S. v. Follet, 6 N. H. 53. See ante, § 962; [S. v. Boneil, 42 La. An. 1110, 8 S. R. 298, 21 Am. St. R. 413, 10 L.

R. A. 60; P. v. Noelke, 94 N. Y. 137, 46 Am. R. 128.]

4S. v. Yoke, 9 Mo. Ap. 582; [Prendergast v. S. (Tex. Cr. R.), 57 S. W. R. 850.]

5 And see S. v. Barker, 2 Gill & J. 246; Com. v. Gillespie, 7 S. & R. 469, [10 Am. D. 475;] P. v. Sturdevant, 23 Wend. 418; France v. S., 6 Bax. 478; Com. v. Manderfield, 1 Pa. Leg. Gaz. R. 37, 8 Phila. 457; [Anderson v. S. (Tex. Cr. R.), 39 S. W. R. 109.] 6 Whitney v. S., 10 Ind. 404.

them, and handbills advertising them, found on the defendant's counter and bearing his name, are admissible.1

Other questions-connected with the evidence, the indictment and the practice, are considered in the cases cited in the note.2

1 Dunn v. P., 40 Ill. 465.

2 Salomon v. S., 28 Ala. 83; U. S. v. Noelke, 17 Blatch. 554; Com. v. Frankfort, 13 Bush, 185; Com. v. Bierman, 13 Bush, 345; Com. v. Bull, 3 Bush, 656; Miller v. Com., 13 Bush, 731; S. v. Ochsner, 9 Mo. Ap. 216; S. v. Houston, 30 La. An. 1174; Ex parte Tompkins, 58 Ala. 71; Charles v. P., 1 Comst. 180; P. v. Warner, 4 Barb. 314;

616

Com. v. Hooper, 5 Pick. 42; Swan v. S., 29 Ga. 616; Com. v. Harris, 13 Allen, 534; Com. v. Lottery Tickets, 5 Cush. 369; [C. v. Brockway, 150 Mass. 322, 23 N. E. R. 101; C. v. Gorman, 164 Mass. 549, 42 N. E. R. 94; S. v. Russell, 17 Mo. Ap. 16; S. v. Rotschild, 19 Mo. Ap. 187; S. v. Williams, 44 Mo. Ap. 302; S. v. Pomeroy, 130 Mo. 489, 32 S. W. R. 1002.]

CHAPTER LIV.

DRUNKENNESS.

§ 967. Introduction. 968-9736. Law of the offense.

974-982. The procedure.

§ 967. Elsewhere

we have considered the effect of drunkenness on the criminality of acts committed under its influence.1 Here we are to inquire after the crime of drunkenness. How chapter divided.— The order will be, I. The law of the offense; IL The procedure.

I. THE LAW OF THE OFFENSE.

§ 968. At common law,- a mere act of private drunkenness is not, as elsewhere explained, indictable.

But —

Nuisance. One drunk in public is a sort of public nuisance; and, it seems, that to be a common drunkard and be abroad intoxicated is indictable at the common law,- a doctrine not firmly established.' The Tennessee court even held that a single act of drunkenness, public and notorious, is within the principle; the North Carolina, that to such act there must be added some annoyance to the public. Again,—

§ 969. Drunkenness in office — (Juror― Justice of peace). Drunkenness by an official person in the discharge of official duties is, in some circumstances, and, it is believed, generally, a punishable malfeasance under the unwritten law. So that,

1 Crim. Law, I, § 397 et seq. 2 Crim. Law, I, § 399.

'S. v. Waller, 3 Murph. 229; and the cases cited in the notes next following.

4 Smith v. S., 1 Humph. 396. But a statute afterward provided that no one "shall be subject to presentment or indictment for single acts of intoxication or drunkenness, unless he shall, whilst so intoxicated, commit some other indictable of

fense." And this is held to protect a single instance of drunkenness, though public and notorious. Hutchison v. S., 5 Humph. 142. But such single act is indictable since the adoption of the code. S. v. Smith, 3 Heisk. 465. See also post, § 974.

5 S. v. Deberry, 5 Ire. 371; S. v. Waller, 3 Murph. 229.

6 Crim. Law, I, § 459 et seq.; II, §§ 971-982.

for example, a grand juror is indictable at the common law for getting drunk when on duty, thereby "disqualifying himself for the discharge of the office of a juror." And in Virginia it was adjudged that drunkenness by a justice of the peace, while performing his official functions, is a misbehavior furnishing cause to amerce him and remove him from office.2

§ 970. Statutes.- We have in more or less of our states statutes against specified forms of drunkenness; particularly against being a

"Common drunkard"-" Habitual drunkard."- The two expressions, "common drunkard" and "habitual drunkard,” are equivalents. There is said to be no "fixed rule " defining such drunkard. "Occasional acts of drunkenness" are not enough;* nor, on the other hand, need the party be always, or even daily, drunk. One case holds, following some analogies, that, at least, three specific instances of being drunk must be shown." And still the drunkenness must be "habitual" or "common;" so that simply to be drunk three times within a given period does not constitute a common drunkard. As to

§ 971. Disturbing public.- One to be a common drunkard need not disturb the public by his drunkenness. Nor need he be drunk in public; at least, it is sufficient that his drunkenness occurred in another's room in the house wherein he resides.10 Moreover

§ 972. From what drinks-(Chloroform - Opium).-The drunkenness must proceed from some form of the liquors popu

1 Pennsylvania v. Keffer, Addison, 290. And see Crim. Pro., I, §§ 869, 925.

2 Com. v. Alexander, 4 Hen. & M. 522, 1 Va. Cas. 156; Com. v. Mann, 1 Va. Cas. 308; [McComas v. King, 81 Ind. 327. Other states have statutory provisions in respect to conductors, engineers and drivers of public vehicles; e. g., see Arizona, Idaho and California.]

3 Com. v. Whitney, 5 Gray, 85, 86; Com. v. McNamee, 112 Mass. 285.

4 Ludwick v. Com., 18 Pa. St. 172; S. u. Robinson, 111 Ala. 482.]

1 Bishop, Mar., Div. & S., § 813; Com. v. McNamee, supra.

6 Ante, § 879, and the places there referred to.

7S. v. Kelly, 12 R. L. 535.

8 Com. v. Whitney, supra; S. v. Pratt, 34 Vt. 323; Mapes v. P., 69 Ill. 523; [N. W. L. Ins. Co. v. Muskegon Bank, 122 U. S. 507; Brown v. Brown, 38 Ark. 328: Dunn v. Dunn, 62 Cal. 176; Gallagher v. P., 120 Ill. 183, 11 N. E. R. 334; Gurley v. Butler, 83 Ind. 501; Rude v. Nass, 79 Wis. 330, 24 Am. St. R. 717.]

9 Com. v. Conley, 1 Allen, 6, 7.
10 Com. v. Miller, 8 Gray, 484.

larly termed intoxicating. A similar inebriety from chloroform' or opium2 does not come within the statutory term.

§ 973. Public drunkenness - (Way). There are variouslyworded statutes against public drunkenness. One making it punishable to be found drunk in any street, alley, or other public place, has been held to extend only to these localities within the compact parts of cities and villages, not including a highway in the country.

§ 973a. "Permit drunkenness."-To "permit" a thing is to suffer it in another. One does not "permit drunkenness " who simply gets drunk himself."

99

§ 973b. By-law. A town, by statute authorized to prevent "riots, noise, disturbance," etc., and "preserve peace and order,' may provide by ordinance for the arrest and punishment of persons found drunk.®

II. THE PROCEDURE.

§ 974. Indictment for nuisance at common law. The allegations for this form of the offense' should conform to what the pleader believes the court will hold the law to be. They may be, for example, that, at a time and place specified, the defendant was "openly and notoriously drunk, to the disturb

1 Com. v. Whitney, 11 Cush. 477. 21 Bishop, Mar., Div. & S., § 813; [Youngs v. Youngs, 3 Ill. Ap. 224, affirmed in 130 Ill. 234; Dawson v. Dawson, 23 Mo. Ap. 170. See following cases as to "drug habit " being made habitual drunkenness by statute and as to the constitutionality of such legislation: In re House, 23 Colo. 94; City of Baltimore v. Keeley Institute, 81 Md. 107, 31 Atl. R. 437; Burt v. Burt, 168 Mass. 205; Foreman v. Hennepin Co., 64 Minn. 374, and Keeley Institute Co. v. Milwaukee, 95 Wis. 161, 60 Am. St. R. 105.]

3 Hill v. P., 20 N. Y. 363; Evans v. S., 59 Ind. 563; S. v. Moriarty, 74 Ind. 103; S. v. Waggoner, 52 Ind. 481; ante, § 968; [S. v. Wild, 88 Ind. 308; S. v. Sevier, 117 Ind. 338, 20 N. E. R. 245; S. v. Brown, 38 Kan. 390, 16 Pac. R.

259; S. v. Locker, 50 N. J. L. 512, 14 Atl. R. 749; S. v. Austin, 62 Vt. 291, 19 Atl. R. 117; S. v. White, 64 Vt. 372, 24 Atl. R. 250; P. v. Com'rs, 46 Hun (N. Y.), 507; Ex parte Schmidt, 24 S. C. 363.]

4 S. v. Stevens, 36 N. H. 59; [S. v. Carville (Me.), 14 Atl. R. 942; Com. v. Cheney 141 Mass. 102, 6 N. E. R. 724; Ford v. Breen, 173 Mass. 52; S. v. Flynn, 16 R. L. 10, 11 Atl. R. 170; Bordeaux v. S., 31 Tex. Cr. R. 37, 19 S. W. R. 603; Murchison v. S.. 24 Tex. Ap. 8, 5 S. W. R. 508; S. v. Ryan, 70 Wis. 686, 36 N. W. R. 823.]

5 Warden v. Tye, 2 C. P. D. 74.

6 Bloomfield v. Trimble, 54 Iowa, 399, 37 Am. R. 212; [City of St. Joseph v. Harris, 59 Mo. Ap. 122; Chafin v. Waukesha Co., 62 Wis. 463.] 7 Ante, § 968.