Case 99 — INDICTMENT—

January 29.

#### Commonwealth *v.*Enright.

APPEAL FROM KENTON CIRCUIT COURT.

1. Pool-rooms — Nuisance.—One who permits persons to habitually assemble in a house in his occupation and under his control and there to engage in betting, winning and losing money on horse races, is guilty of maintaining a common nuisance. •

2. To CONSTITUTE A GOOD INDICTMENT FCR NUISANCE it ÍS not UeCeS-sary to allege that the acts done were “to the common nuisance,” etc.

WM'. J. HENDRICK, Attorney-General, and W. W. CLEARY for APPELLANT.

The indictment is good. The strictness of the common law is not now required in ináictments for misdemeanors, and the omission of terms merely technical is not material. (Criminal Code, secs. 122, 337; Cheek v. Commonwealth, 79 Ky., 359; Rhodus v. Commonwealth, 2 Duv., 159; Furnish- v. Commonwealth, 14 Bush, 181; Kaelin v. Commonwealth, 84 Ky., 354; Commonwealth v. McAtee, 8 Dana, 28; Commonwealth v. McChord, 2 Dana, 243, Gregory v. Commonwealth, *6362 Dana, 417; 2 Bishop’s Crim. Proc., 3d ed., sec. 864; Wood’s Law of Nuisances, 2nd ed., secs. 45, 41, 26 and cases examined, referred to in opinion of Superior Court in case of Enright v. Commonwealth, March, 1892; Smith v. Commonwealth, 6 Ben. Mon., 21; 8 Am. and Eng.- Enc. of Law, pp. 1066, 1073; Tanner v. Trustees of Albion, 40 Am. Dec., 337-340; KnefEer v. Commonwealth, 94 Ky., 359; Smith v. Western Union Tel. Co., 84 Ky., 664; Stevens’ Criminal Law, Article 1S3.)

O’NEAL, PHELPS & PRYOR for appellee. .

Brief not in record.

JUDGE LEWIS

DELIVERED THE OPINION OF THE COURT.

The question in this case is whether the lower court properly sustained a demurrer to the indictment, which is as follows: “The grand jury of Kenton county, in the name and by the authority of the Commonwealth of Kentucky, accuse C. Enright of the offense of maintaining a common nuisance, committed as follows, to-wit: The said C. Enright, on the 7th day of May, 1891, in the county and State aforesaid, and before the finding of this indictment, and from that time up to and including the date of the finding of this indictment, did unlawfully suffer and permit divers persons, whose names are to the jury unknown, to habitually assemble in a house in the city of Covington, in said county, on the east side of Scott street, near the comer of Third street, the said house being then and there in the occupation and under his control, and then and there to engage m betting, winning and losing money on horse races, against the peace and dignity of the Commonwealth of Kentucky.”

The reason urged by counsel, and for which, we suppose, the lower court adjudged the indictment insufficient, is that it does not contain the words “to the common nuisance of all good citizens of the Commonwealth, residing' in the neighborhood or passing by,” or any others of similar import.

*637As defined by our Criminal Code, an indictment is an accusation in writing, charging a person with the commission of a public offense, and must contain:

“1st. The title of the prosecution, specifying the name of the court in which the indictment is presented, and the names of the parties.

“2d. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, and with such degree of certainty as to enable the court to pronounce judgment on conviction, according to the right of the case.” (Crim. Code, secs. 118, 122.)

It is plain that if the acts stated in an indictment for maintaining a common nuisance do not in law constitute the offense, an averment they were done, “to the common nuisance,” etc., will not cure the defect, because it would not add to the substance of the indictment, being as said in Bishop on Criminal Law, section 864, “a mere superfluous statement of a mistaken conclusion of law.” On the other hand, if the acts done are such as to constitute the offense, and a statement of them is made, in the language and manner and with that degree of certainty required by the Code, it would seem equally plain the omission of the averment would not alone render the indictment defective, because, using language, of the same author, “it would not help what needs no assistance, nor make plain what requires no explanation.”

The question we are considering has not been heretofore decided by this court, nor does there seem to be entire.agreement of authorities in regard to it; so in determining if we must be guided by the Criminal Code, which as said in Rhodus v. Commonwealth, 2 Duvall, 159, “dispenses with form and requires substance only;” and as it, in neither terms nor meaning, makes the averment in question a pre*638requisite to sufficiency of an indictment like this, we are of opinion the court erred in sustaining the demurrer, if the facts stated constitute the offense charged. That they do we think is settled by the case of Cheek v. Commonwealth, 79 Ky., 359. To decide otherwise w'ould be a sacrifice of substance to mere form, and disregard of the reason and purpose of the Criminal Code.

The judgment is, therefore, reversed and cause remanded for proceedings consistent with this opinion.