The court instructed the jury as follows : “ 4. If you believe from the evidence that the quarreling, drunkenness, fighting or breaches of the peace, were not in the house, but on the street or sidewalk, and men congregated there accidently, and the disturbance arose, not from the character of the house kept by the defendant, but in consequence of men getting drunk elsewhere and who came accidently about his house to fight out their drunken brawls without being attracted there by the character of this house,- — then your verdict should be not guilty. But if you find that the defendant was the keeper of a beer saloon, and permitted persons to gather in and around his saloon and drink and fight and quarrel and raise disturbances in or around the house, to the annoyance of others, and that it was the character of the establishment kept by him that caused the disturbances around it, — your verdict should be guilty.”
Defendant complains of the instruction because “the indictment alleges that the drunkenness and fighting were in the house, while the court charges that if around the house the defendant is guilty.”
There was no error in the instructions. The court took the right view of the statute. Bev. § 4411. It is the keeping of the kind of house named in this section which constitutes the offense.
*237If a person keeps snch a house, he is guilty, under the statute, whether the fighting, quarreling, etc., occurs in it, or on the sidewalk in front of it, if, as the court charged, it was the character of the house which attracted the disorderly persons there, and which caused' the disturbances in or around it. Cable v. The State, 8 Blackf. 531, as to nature and description of offense; Rev. § 4925, as to duty of this court on appeal.
Affirmed.