TITLE X.

Of Crimes against the Public Health and Safety.

§ 368. Death from explosions, etc.

§ 369. Death from collision on railroads.

$370. "Public nuisances" defined.

§ 371. Unequal damage.

372. Maintaining a nuisance, a misdemeanor.

§ 373. Establishing or keeping pest-houses within cities, towns, etc.

§ 374. Putting dead animals in streets, rivers, etc.

§ 376.

§ 377.

Violation of quarantine laws by masters of vessels.
Willful violation of health laws.

§ 378.

Neglecting to perform duties under health law.

§ 379. Unlicensed piloting.

§ 380. Apothecary omitting to label drugs, or labeling them wrongfully, etc.

§ 381. Putting extraneous substances in packages of goods usually sold by weight, with intent to increase weight.

§ 382. Adulterating food, drugs, liquors, etc.

§383. Disposing of tainted food, etc.

§ 384. Setting woods on fire.

§ 385. Obstructing attempts to extinguish fires.

§ 386. Maintaining bridge or ferry without authority.

§ 387. Violating condition of undertaking to keep ferry. Riding or driving faster than a walk on toll-bridges. § 389. Crossing toll-bridges, etc., without paying toll.

§ 388.

§ 390. Engineer of locomotive engine omitting to ring bell when crossing highway.

§ 391. Intoxication of engineers, conductors, or drivers of locomo

§ 394.

Exposing person infected with any contagious disease in a public place.

§ 398. Selling fire-arms and ammunition to Indians.

§ 399. Death from mischievous animals.

$ 400. Aiding or encouraging suicide a felony.

§ 400. Exhibiting deformities of person.
§ 400. Using or exposing animal with glanders.
§ 401. Animal having glanders to be killed.
§ 401. Adulterating candy.

368. Every person having charge of any steam-boiler or steam-engine, or other apparatus for generating or employing steam, used in any manufactory, or on any railroad, or in any vessel, or in any kind of mechanical work, who willfully, or from ignorance or neglect, creates, or allows to be created, such an undue quantity of steam as to burst or break the boiler, engine, or apparatus, or to cause any other accident whereby the death of a human being is produced, is punishable by imprisonment in the State prison for not less than one nor more then ten years. Negligence.-Carelessness is criminal, and within limits supplies the place of direct criminal intent-Anth. 208; 6 B. Mon. 171. And an act of omission as well as an act of commission may be criminal-2 Blatchf. 528; 5 McLean, 242. So where an engineer left his engine in charge of an incompetent person, and death ensued, he was guilty of manslaughter-4 Cox C. C. 449; S. C. 3 Car. & K. 123: or the officer of a steamboat through whose negligence an explosion takes place which destroys life-5 McLean, 242; or engineers and other officers generally, if injury ensues, as a regular and usual consequence, from their omission-2 Car. & K. 368; 3 id. 123; 4 Cox C. C. 449.

369. Every conductor, engineer, brakeman, switchman, or other person having charge, wholly or in part, of any railroad car, locomotive, or train, who willfully or negligently suffers or causes the same to collide with another car, locomotive, or train, or with any other object or thing whereby the death of a human being is produced, is punishable by imprisonment in the State prison for not less than one nor more than ten years.

370. Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, by an entire community or neighborhood, or by any considerable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square,

PEN. CODE.-14.

street, or highway, is a public nuisance.

March 30th, in effect July 1st, 1874.]

[Approved

Public nuisance.-A public nuisance is one which affects, equally, the rights of the whole community or neighborhood, although the extent of the damage may be unequal-Civ. Code, § 3480.

It is an act or omission which unlawfully annoys or injures the public in common, and not merely some particular person-52 Mo. 164; S. C. 1 Green C. R. 553; 3 Up. Can. C. P. 545; 3 id. 333; but it is not necessary that all the community be affected-6 Rand. 726; 2 Yerg. 482; 1 Dev. & B. 195. By the statute, whatever is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, is a nuisance-8 Ind. 494. It is enough if it offends the senses, or disturbs the comfort of the community-I Bush, 139: 8 Cowen, 146; 1 Denio, 424; 5 Har. (Del.) 487; 8 Ind. 494; 4 Mass. 522; 13 Met. 365; 3 S. C. 438; S. C. 1 Green C. R. 503; 1 Burr. 333; 2 Car. & P. 485. It is public if it annoys such part of the public as necessarily comes în contact with it-id. Where the statute does not cover all cases of nuisance, the common-law rule is in force-59 Mo. 321.

Public decency.-It is enough if the public nuisance shocks public morality-10 Humph. 99; 1 Swan, 42; id. 136; 3 Humph. 203; id. 229; 2 id. 414; 1 id. 396; 2 Bail. 149; 2 Yerg. 482; 19 Pa. St. 412; 1 Murph. 254; 1 Dev. 267; 4 Yerg. 163; 3 Day, 103; 52 Ind. 311; 126 Mass. 46; 4 Fost. & F. 73; Law R, 1 Q. B. D. 15; Comb. 304. Whatever openly outrages decency, and is injurious to, or tends to corrupt public morals, is a misdemeanor-3 Day, 103; 7 Conn. 267; 17 Mass. 336; 10 Ind. 140; 2 Serg. & R. 91; Law R. 3 Q. B. 360; 8 Phila. 453; as public blasphemy and profane swearing-43 Cal. 480; 2 Har. (Del.) 553; 9 Ired. 38; 8 Johns. 290; 11 Serg. & R. 394; 3 Heisk. 135; 1 Dev. 267; 63 N. C. 259; 3 Sneed, 134; 13 Pick. 359; 19 Pa. St. 412; 1 Swan, 42; 70 N. C. 67; 1 Murph. 254; 20 Pick. 206; or the public utterance of obscene language-1 Swan, 42; or the public exhibition of obscene pictures, prints, and writings-17 Mass. 336; 1 Hilt. 590; 8 Phila. 453; 2 Serg. & R. 91; 4 Fost. & F. 73; or the public exposure of one's person, or the person of another-5 Barb. 203; 1 Dev. & B. 208; 3 Humph. 203; 32 Mo. 560; 4 Hun, 636; 1 Den. C. C. 338; 12 Cox C. C. 1; 13 id. 116. So every public show which outrages decency, shocks humanity, or is contrary to good morals, is indictable3 Day, 103; 2 Duval, 89. See Desty's Crim. Law, § 109 a.

Obstructing highway.-All injuries or obstructions to a highway, and all acts which will render it less commodious, are public nuisances-1 Denio, 524; 2 Ind. 440; 3 id. 447; 26 Wis. 547; 5 Ired. 369; but the road must be public-2 Pick. 44; 1 Strob. 110; 2 Kerr, 614; and the offense must be to the public generally-35 N. H. 368; 7 Mich. 432. Some injury must be done, or some danger or annoyance to passers thereon must be created-Law R. 1 C. P. 321; as placing obstructions without authority-107 Mass. 234. The obstruction of any road laid out by authority is a nuisance-1 McMull, 44; although it be opened by an erroneous judgment-2 Dev. & B. 547. So, where a highway was discontinued, and a new road used by the public-2 Humph. 543. Anything done by an owner interfering with the right of way to a dedicated highway, is a nuisance-Law R. 5 Q. B. 31. The ob struction must injuriously affect some public right-7 Mich. 432; and it must be material and unlicensed-35 Conn. 313; but a license is no defense for negligent obstruction-8 Black f. 260; 5 Har. (Del.) 508; 107 Mass. 188; 1 Pa. St. 105; 60 id. 367; 21 Alb. L. J. 36; 2 Gale & D. 729; 1 Barn. & Adol. 444. See citations in Desty's Crim. Law, §§ 121 a, b.

Danger to life or property.-The keeping or manufacturing of explosives, or inflammable substances, in such quantities and places, or in such manner as to endanger life or property, is a nuisance-34 Me. 36; 74 Pa. St. 230; 107 Mass. 188; 56 Barb. 72; 1 Johns. 78; 1 Swan, 213;

Thach. C. C. 14; 3 East, 192; Dears. & B. 209; as, large quantities of gunpowder kept in populous places-1 Johns. 78; 6 Hill, 292; 12 Mod. 342; 55 Barb. 72; 2 Strange, 1167; spring-guns set to the highway, whereby life is endangered-31 Conn. 479; 5) Ala. 1; racing on public roads-I Head, 154; 33 Ala. 428; 6 Baxt. (Tenn.) 545; or driving through a crowded street-Peters C. C. 390; excavating area and leaving it open -2 Blackf. 423; 9 Com. B. 392; blasting, so as to project stones on highway-Leigh & C. 489; projecting buildings subjecting passengers to danger-51 Cal. 142; 45 Ind. 429; see 55 N. H. 55; things overhanging highway, exposing passengers to danger-117 Mass. 114; 67 Pa. St. 355; 1 Salk. 357. See Desty's Crim. Law, § 118 b.

Highways, what are.-A highway is a public road, and not a private way-20 Ala. 86. A way of necessity does not give to the public a permanent easement-44 N. H. 628; but where a way has always been used as a public highway, the public right will not be deemed to have been lost by abandonment-50 N. H. 9. The number of persons using a way and repairing it will not make it a public way, if not common to all persons-8 Term. Rep. 634. A foot-way, horse-way, or cul de sac, if common to all people, is a highway-2 Pick. 44; 1 McCord, 404; 6 Rich. 112; 1 Strob. 110; 35 N. H. 368; 10 Mod. 382; or a turnpike-21 Álb. L. J. 36; 2 Pa. St. 114; 16 Pick. 175; or toll-road-16 Pick. 175; 2 Lewin, 193; or any public square or space dedicated to public use-3 Hill, (S. C.) 149; 3 Pa. St. 202; 14 id. 186; 2 Watts, 23; 24 Vt. 448; or a bridge-28 N. H. 195; 3 Barn. & Adol. 201; or a ferry-2 Dill. 332; 7 Humph. 86; 5 La. An. 661; 24 id. 542; 42 Me. 9; 1 Nott & McC. 387; 2 Va. Cas. 354; 11 Wend. 586; 3 Zab. 206; 4 id. 718; or navigable rivers, harbors, and the great lakes are highways-10 Ill. 351; 13 How. 518; 4 Jones, (N. C.) 107; 43 Me. 198; 2 Mich. 519; 1 Pa. St. 105; 15 Rich. 310.

Dedication to public use.-Presumption of dedication depends more on the owner's assent than on the length of time of non-user-49 Ala. 353. Formal acceptance by the authorities is not necessary-20 Ala. 86; 21 Dana, 417; 34 Me. 9; 7 Mass. 378; 16 Pick. 275; 11 Serg. & R. 345; 6 Port. 372; 2 W. Va. 589. A road open to the public without limit or restriction, and recognized by the town in expenditure for repairs, is a public highway-59 Me. 366; but, merely repairing does not constitute an acceptance-40 Me. 154. It may be accepted by vote, or any act recognizing an obligation to repair, or by twenty years' user, or by substituting it for an ancient highway-16 N. H. 203. It is sufficient if the public have the right to pass and repass thereon-20 Ala. 86; 21 Dana, 417; 34 Me. 9; 7 Mass. 378; 16 Pick. 275; 11 Serg. & R. 345; 6 Pórt. 372; 2 W. Va. 589.

Obstruction of streets.-A use of a public street or square cannot be obtained by prescription-50 Cal. 265; 53 id. 437; 2 Pick. 44; 1 Whart. 469; nor is the public right lost by non-user-2 Humph. 543. No length of time legitimates a nuisance-I Bush, 139; 1 Denío, 524; 6 Gray, 473; 2 Humph. 543: 4 Ind. 515; 2 Pick. 44; 9 Wend. 315; 1 Whart. 469; 4 Wis. 387; 3 S. C. 438; S. C. 1 Green C. R. 503; 4 Thomp. & C. 567; 8 Up. Can. C. P. 208; 3 Camp. 227; 4 Bing. N. C. 183; 2 id. 134; 4 id. 185; 7 East, 199. Whatever interferes with travel, either by permanent or temporary structures or impediments, is a nuisance-6 East, 427. So of a passageway from one highway to another-1 McCord, 404; as keeping material in front of a house for repairs-3 Camp. 230; or frontsteps of a dwelling so built as to be an obstruction-107 Mass. 234; or the delivery of grain through pipes, received in casks standing in wagons-1 Denio, 524; or delivery wagons impeding travel-6 East, 427; 3 Camp. 227; or a team in front of a horse-car refusing to turn off the track-14 Gray, 69; or a gas company obstructing the highway, is a nuisance-7 Up. Can. L. J. 23. A mere encroachment rendering the highway less commodious, is a nuisance-35 Conn. 314; 12 Cush. 254; 14 Gray, 69.

Obstructing sidewalk.-Obstructing a sidewalk is an offense-11 Pa. St. 196; as by a stall, for sale of fruit, etc.-6 Gill, 425; 4 Clark, (Pa.) 324;

see 107 Mass. 234; 11 Serg. & R. 345; or sales by constables-13 id. 403; or by auctioneers-1 id. 217; or by collecting crowds by use of violent or excited language-113 Mass. 8; 1 Denio, 524; 19 Pa. St. 412; 1 Swan, 42; or by exhibiting effigies at a window-6 Car. & P. 636; or by exhibiting a stuffed paddy, or any public show or game-4 Clark, (Pa.) 17; 6 Car. & P. 636; Law R. 5 Eq. 25; 4 Fost. & F. 73; or by the use of a velocipede-30 Up. Can. Q. B. 41. A temporary obstruction on receiving or delivering goods is allowed-1 Denio, 524; so telegraph poles are not a nuisance-97 Mass. 555.

Obstruction by railroads.-The unlawful obstruction of a highway by a railroad is a nuisance, and the company is liable to indictment-4 Gray, 22; 27 Vt. 103; as by leaving cars on a highway-3 Zab. 360; 112 Mass. 412; 73 Pa. St. 29; or building a road across a highway without authority-4 Gray, 22; 14 id. 93; or, if authorized, negligently or oppressively exercising its rights-21 Alb. L. J. 36; or crossing, to the anxiety or danger of passers-27 Pa. St. 339; but a train crossing highways, the company keeping closely within the range of its charter, is not indictable-101 Mass. 201; see 4 Barn. & Adol. 30. See Desty's Crim. Law, § 121 g.

Obstructions to navigable waters.-To obstruct the passage of a navigable river by bridges, or otherwise, is a nuisance-43 Me. 198; 13 How. 518; 1 Pa. St. 105; 4 Jones, (N. C.) 107; 15 Rich. 310; 10 11. 351; 2 Mich. 519; 4 Ad. & E. 384; 6 id. 143; 16 Q. B. 1022; or to divert part of the water-2 Show. 30; as by a dam-5 Pick. 199; 6 Rand. 726; 4 Wis. 387; 35 Iowa, 670; or a wharf, if its effect is to fill up the channel or divert the current-Thach. C. C. 211; 2 Stark. 511. See Desty's Crim. Law, § 122 a.

Nuisances in general.-The following have been held nuisances at common law: gambling-houses and places for other useless sports-30 Me. 65; 4 Smith E. D. 570; 5 Hill, 121; Charlt. R. M. 1; 3 Denio, 101; 8 Eng. 700; 3 Cranch C. C. 656; 2 id. 92; 4 id. 108; 1 id. 150; 1 Va. Cas. 133; 1 Day, 60; 2 Colo. 509; disorderly houses-6 B. Mon. 21; 6 Blackf. 474; 4 Parker Cr. R. 238; 8 Blackf. 205; 8 Ind. 494; 13 Pick. 359; 21 N. H. 343; 1 Salk. 384; a public lottery-9 Nev. 101; 18 Up. Can. Q. B. 403; 8 Up. Can. C. P. 189; keeping a public tippling-house for promiscuous and noisy tippling and promoting drunkenness-42 Ind. 327; 5 Cranch C. C. 304; 6 Blackf. 474; 12 B. Mon. 2; Law R. 1 C. C. 21; common drunkenness, although the party be not constantly in that condition-34 Vt. 323; houses of ill-fame, if open, notorious, and scandalous to the public generally -2 Yerg. 482; 4 McCord, 472; 2 Serg. & R. 298; 42 Ind. 327; any public exhibition which is scandalous-3 Day, 103; adulteration of food-3 Maule & S. 11; 4 Camp. 12; 4 Maule & S. 214; carrying on offensive trades in a thickly populated community-27 Ind. 430; all injuries or obstructions to highways-1 Denio, 424; 2 Ind. 440; 3 id. 447; 26 Wis. 547; 5 Ired. 869; to allow a highway to become grossly out of repair--12 Up. Can. C. P. 450; 9 Car. & P. 469.

371. An act which affects an entire community or neighborhood, or any considerable number of persons, as specified in the last section, is not less a nuisance because the extent of the annoyance or damage inflicted upon individuals is unequal. [Approved March 30th, in effect July 1st, 1874.]

372. Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, or who willfully omits to perform any