A common profane swearer is indictable as a common nuisance. Ellar, 12 (1 Dev.), 268.

SLAUGHTER-PEN.-Where, in the trial of an indictment for creating a common nuisance by maintaining a slaughter-pen, there was no testimony showing that the community generally were annoyed or affected injuriously by the noxious odors complained of, the court properly declined to submit to the jury the question whether such an injury to the residents of the neighborhood as amounted to a public nuisance had been shown. Wolf, 112-889.

To sustain an indictment for keeping a slaughter-pen producing offensive odors, constituting a public nuisance to all citizens passing along an adjacent public road, it is necessary to prove that the road upon which the citizens were annoyed was a public highway. Wolf, 112-889.

MUST BE IN PRESENCE OF OTHERS.-To make an act a nuisance it must be done in the presence and hearing and to the annoyance of divers persons about the place where the act was done. Cainan, 94-880.

A nuisance is to the public and not an injury or annoyance which a person causes to himself and family. Hard, 122-1092.

PUBLIC HIGHWAY.-Where, on the trial of an indictment for creating and maintaining a common nuisance to persons "passing along a common road and public highway," there was no evidence tending to show that any person while passing along the road was actually annoyed or that the public had acquired an easement in such road, the court erred in refusing to instruct the jury that the defendant was not guilty in any aspect of the testimony. Wolf, 112889.

A fence across a street rendering its use inconvenient is a nuisance, and may be removed. Godwin, 145—.

ОАТН.

An oath administered substantially in the form prescribed by statute is sufficient. Mazon, 90-676.

It is not necessary for the witness to repeat the words "so help me God," as these words are no part of the oath. Paylor, 89-539. Mazon, 90-676.

OBSCENE LITERATURE.

Sec. 732 (3731). Obscene literature.

If any person shall exhibit for the purpose of gain, lend for hire or otherwise publish or sell for the purpose of gain, or exhibit in any school, college or other institution of learning, or have in his possession for the purpose of sale or distribution, any obscene book, paper, writing, print, drawing or other representation, or any person posting any indecent placards, writings, pictures, or drawings on walls, fences, bill-boards, or other places, or any person making any public exposure of the person or other indecent exhibitions, or giving or taking part in any immoral show, exhibition, or performance where indecent, immoral, or lewd dances or plays are

conducted in any booth, tent, room, or other place to which the public is invited, or any one who permits such exhibitions or immoral performances to be conducted in any tent, booth, or other place owned or controlled by him," he shall be guilty of a misde

meanor.

1885, c. 125; 1907, c. 502.

Sec. 733. Indecent pictures on trees.

It shall be unlawful for any person to write, cut or carve any indecent word or words, or to paint, cut or carve any obscene or lewd picture, or representation, on any tree or other object near the public highways or public places. Any person guilty of violating this act shall be fined not more than fifty dollars, or imprisoned not more than thirty days.

1907, c. 344.

OBSTRUCTING ALBEMARLE SOUND.

Sec. 734 (3551). Lumbermen required to remove obstructions in Albemarle Sound and its tributaries; penalty for failure.

Lumbermen shall be required to remove all obstructions which they place in the waters of Albemarle Sound and its tributaries, as soon as practicable, after they have ceased to use them for the purpose for which they were placed in said waters. Said obstructions shall be removed from all places where the water is not less than two feet deep, and also, from all landing places on both sides, for the space of sixty feet from the shore outward; and any one failing to comply with this chapter, shall be guilty of a misdemeanor, and fined not less than one dollar, nor more than fifty dollars, at the discretion of the court.

Code, s. 3303; 1880, c. 37, ss. 1, 2.

OBSTRUCTING CURRITUCK SOUND.

Sec. 735 (3553). Obstructing waters of Currituck Sound.

It shall be unlawful for any person to impair or obstruct navigation in the waters of Currituck Sound and tributaries, and all persons, corporations, companies, or clubs, who have heretofore had placed or placed any hedging or hedgings across the mouth of any bay, creek, strait or lead of water in Currituck Sound or tributaries. made of iron, wire or wood or otherwise, for the purpose of pre

venting the free passage of boats or vessels of any size or class, or to stop the public use of any such bay, creek, strait or lead of water, are hereby required to forthwith remove the same. Any person, corporation, or club having violated or who shall violate any of the provisions of this section shall be guilty of a misdemeanor, and upon conviction shall be fined not more than fifty dollars nor less than ten dollars, or imprisoned not more than thirty days, at the discretion of the court.

1897, c. 277.

OBSTRUCTING HARBOR-MASTER.

Sec. 736 (3552). Obstructing harbor-master of Wilmington.

If any person shall hinder, delay, obstruct or in any manner willfully interfere with the harbor-master of Wilmington in the discharge of his duty he shall be guilty of a misdemeanor, and be fined not more than fifty dollars or imprisoned not more than thirty days.

1903, c. 662, s. 8.

OBSTRUCTING JUSTICE.

Where a person obstructs an overseer in cutting a ditch across his land to drain a public road, he is not guilty of obstructing justice, there being no provision of law for taking private property for this purpose. New, 130— 731.

OBSTRUCTING STREAMS.

Sec. 737 (3561). Streams; obstructing passage of boats on.

If any person shall obstruct the free passage of boats along any river or creek, by felling trees, or by any other means whatever, he shall be guilty of a misdemeanor.

Code, s. 3711; R. C., c. 100, s. 6; 1796, c. 460, s. 2.

Sec. 738 (3559). Streams, obstructing.

If any person shall willfully fell any tree, or willfully put any obstruction, except for the purposes of utilizing water as a motive power, in any branch, creek or other natural passage for water, whereby the natural flow of water through such passage, is lessened or retarded, and whereby the navigation of such stream by any raft or flat may be impeded, delayed or prevented, the person so

offending shall be guilty of a misdemeanor, and fined not to exceed fifty dollars, or imprisoned not to exceed thirty days. Nothing in this section shall prevent the erection of fish-dams or hedges which do not extend across more than two-thirds of the width of any stream where erected, but if extending over more than two-thirds of the width of any stream, the said penalties shall attach.

Code, s. 1123; 1872-3, c. 107, ss. 1, 2.

Sec. 739 (3560). Streams navigable, obstructing; pilot failing to give information.

If any person shall cast or throw from any vessel, into the navigable waters of Carteret or Onslow counties, of Tar or Pamlico River, or into the navigable waters of the Cape Fear, or any other river in the state, or into any channel of navigable water elsewhere than in a river, any ballast, stone, shells, earth, trash or other substance likely to be injurious to the navigation of such waters, rivers, or channel; or if any person shall willfully pull down any beacon, stake or other mark, erected or placed by virtue of any by-law, order or regulation, passed or ordained by any commissioners of navigation, he shall be guilty of a misdemeanor and shall forfeit and pay two hundred dollars, to be recovered for the use of the commissioners in whose waters the offense was committed. If any pilot shall knowingly suffer any such unlawful act to be done, and shall not within ten days thereafter give to the said commissioners, or one of them, information thereof, such pilot shall likewise be guilty of a misdemeanor; and, besides the usual punishment of such offense, on conviction, shall be forever incapable of acting as a pilot in the state.

Code, ss. 3537, 3538; R. C., c. 85, ss. 40, 41; 1833, c. 146; 1784, c. 205, s. 11; R. S., c. 88, ss. 23, 24, 45; 1811, c. 839; 1842, c. 65, s. 4; 1846, c. 60, s. 3.

WATERWAY ACROSS STREET.-The mere obstruction of a waterway across a street does not per se constitute a nuisance, and a judgment quashing a warrant for the violation of a town ordiance prohibiting the obstruction of a waterway across a street on the ground that the ordinance is invalid because the offense of creating a nuisance is cognizable under the general law of the state, is erroneous when the allegation is simply that defendant "did dam up and obstruct the waterway," since it does not appear but that the obstruction is too slight, occasional and temporary to constitute a nuisance. Wilson, 106-718.

NAVIGABLE WATERS.—The public has an easement of navigation in all navigable waters, though the bed of the lake or watercourse may be private property, and the owner of the soil is indictable for obstructing them. Distinguishing State v. Glenn, 7 Jones, 321, where the river was ascertained to be unnavigable. Narrows Island Club, 100-477.

INDICTMENT.-The indictment under this section should aver that the obstruction charged was not "for the purpose of utilizing the water as a motive power." Narrows Island Club, 100-477.

An indictment must negative the fact that the obstructions were placed in the stream "for the purpose of utilizing the water as a motive power." Tomlinson, 77-528.

An indictment for obstructing a navigable stream can be maintained at common law, but not under the statute. Baum, 128-600.

The capability of being used for the purposes of trade and travel in the usual way is the test as to whether a stream is navigable, and not the extent and manner of its use. Twiford, 136-603.

All water courses, not navigable for sea vessels, but capable of being navigated by boats, flats and rafts, technically styled unnavigable streams, are the subject of special grant by the state under the entry law. Glen, 52-321. The English rule for distinguishing navigable waters from others by the ebb and flow of the tides does not obtain in this state, but a navigable stream in this state is one which affords passage for sea-vessels. Dibble, 49-110.

OFFICERS.

Sec. 740 (3576). Duty; failure to discharge.

If any state or county officer shall fail, neglect or refuse to make, file or publish any report, statement or other paper, or to deliver to his successor all books and other property belonging to his office, or to pay over or deliver to the proper person all moneys which come into his hands by virtue or color of his office, or to discharge any duty devolving upon him by virtue of his office, as he is by law required to do, he shall be guilty of a misdemeanor.

WHO IS AN OFFICER DE FACTO.-An officer de facto is one whose acts, though not those of a lawful officer, the law,. upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised: (1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer failed to conform to some precedent requirement or condition, such as taking the oath, giving a bond, or the like; (3) under color of a known election or appointment, void because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such as ineligibility, want of power or defect being unknown to the public; (4) under color of an election or appointment, by or pursuant to a public unconstitutional law before the same is adjudged to be such. Lewis, 107

967.

REGISTRAR OF ELECTION REFUSING TO ALLOW A VOTER TO REGISTER.—A registrar of an election who refuses to allow a voter to register, on the ground that the town charter under which such registrar is acting requires the payment of all taxes due the city as a qualification for voters, and that such voter has not paid his town taxes, can not be convicted under this section, though that part of the charter which requires the payment of town taxes as a qualification for voters may be unconstitutional, since nothing can be inferred against him for assuming that the charter is valid. Powers, 75