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14. Effect of License from Government. § 2376. Hence a license from government to do a particular thing is no defence to an indictment for doing such thing so neg. ligently or badly as to create a nuisance. d But if the license be strictly followed, and a nuisance results, no prosecution can be had, as the state is then presumed to have pro tanto exempted the defendant from prosecution. e Hence a gas manufactory, duly chartered by an act of legislature to supply gas to a city, cannot be convicted of nuisance when the acts complained of were necessary to the exercise of its trust, and were performed in the most careful and judicious way.el
II. ABATEMENT FOR. § 2377. Independently of judgment of fine and imprisonment, f there may be, when the offence is continuous and there is a continuando in the indictment, a judgment by the court that the nuisance abate. But for this purpose the continuando is essential.g The usual course is to order the abatement; and if the defendant neglect or refuse to obey, to direct an abatement by the sheriff. h Private citizens may, at their own risk, abate a public nuisance; though they will be compelled to answer in damages in case they use violence beyond what is actually needed, or in case the nuisance be not such as to authorize such peremptory intervention. ¿ But when the nuisance becomes the
d Del. Canal Co. v. Com. 60 Penns. Manson v. People, 5 Parker C. R. 16; St. 367; R. v. Morris, 1 B. & Ad. Taylor v. People, 6 Parker C. R. 347; 441; State v. Buckley, 5 Harring. 508; Wroe v. People, 8. Md. 416; R. r. Com. v. Church, 1 Barr, 105; R. v. Stead, 8 T. R. 142 ; R. v. Pappineau, Scott, 2 Gale & D. 729; State v. Mul- 1 Strange, 678; State v. Haines, 30 likin, 8 Blackf. 260. Ante, $ 2368; Me. 65. Ante, $ 268. post, $ 2390, 2425 d.
h Barclay v. Com. 1 Casey (Penn.), e Stoughton v. State, 5 Wisc. 291; 503. See Crippen v. People, 8 Mich. Com. v. Reed, 10 Casey, 275; Com. 117. v. Kidder, 107 Mass. 188. Ante, i Renwick v. Morris, 7 Hill N. Y. 2368; post, $ 2418, 2425.
575; State v. Dibble, 4 Jones N. C. el People v. N. Y. Gas Light Co. 107; Meeker v. Van Renselaer, 15 64 Barb. 55. See R. v. Pease, 4 B. & Wend. 397; Barclay v. Com. 1 Casey A. 30.
(Penn.), 503; Moffet 1. Brewer, 1 f State v. Noyes, 10 Foster, 279. Greene (lowa), 348; Wetmore ! Post, $ 2428.
Tracy, 14 Wend. 250; Low v. Knowl g State v. Noyes, 10 Foster, 279; ton, 26 Me, 128; Arundel v. McCul
subject of public prosecution, then the right of private citizens to abate ceases.j And the abatement may be enforced even to the destruction, if necessary, of the property from which the nuisance springs. k But this is not permissible when the nuisance can be abated without such destruction. Thus the destruction of a house of ill-fame cannot be defended on this ground;l though no doubt, where the nuisance was crying, the neighborhood would be justified in expelling the inmates.
III. INDICTMENT. 1. Must conclude to the Common Nuisance of all in the Vicinity.
§ 2378. The technical term “common nuisance” is essential as a term of art, when the indictment is at common law. m But this is not by itself enough. The term “common nuisance" must be so directed as to be pointed, not at particular individuals, but at the community at large; e. g. the offence must be declared to be to the “ common nuisance " " of all the citizens of the said state residing in” the neighborhood; or “ of all the citizens of said state there passing or repassing.”n
2. Must show an Offence not Private but Public. $ 2379. Thus frequenting houses of ill-fame, if done secretly, is not indictable; the indictment, to make the offence a nuisance, must aver it to be done openly, notoriously, and scandalously. o So when a necessary business or concern is indicted as a nuisance, it must be alleged to be situated in such a way as to make it a nuisance to the public; p and so when a dam is claimed to produce stagnant water and to corrupt the air, this must be alleged to be done in such a way as to affect a populous neighborhood, or persons passing on a public highway. I loch, 10 Mass. 70; Hopkins v. Crombie, m R. v. Holmes, 20 Eng. L. & E. 4 N. H. 520; Rung v. Shoneberger, 2 597; 3 C. & K. 360 ; State v. SteWatts, 23 ; State v. Paul, 5 R. I. 185; vens 40 Me. 559. When the offence State v. Keenan, 5 R. I. 497; King v. is statutory, the term is unnecessary Saunders, 2 Brev. 111.
unless prescribed by statute. State v. į Com. v. Erie & N. E. R. R. 27 Stevens, supra. Penn. St. 339.
n Com. v. Faris, 5 Randolph, 691 ; k Penruddock's case, 5 Co. 100; Graffin v. Com. 3 Penn. R. 502. Penns. v. Wheeling, 13 Howard U. o Brooks v. State, 2 Yerger, 482. S. 518; Lancaster v. Rogers, 2 Barr, See Parkinson v. State, 2 W. Va. 589. 114.
p State v. Purse, 4 McCord, 472. | Ely v. Niagara, 36 N. Y. 297. 9 Com. v. Webb, 6 Randolph, 726.
3. Must show that the alleged “ Nuisance" is not merely Offen
sive to the Community, but that it is reasonably so. $ 2380. This point, as a matter of substance, has been already set forth. It is enough now to say that the indictment must be special in this relation, and must show that the act complained of is such as the law would pronounce to be a nuisance. For the pleader to limit himself to the mere conclusion of law, " to the common nuisance,” is clearly insufficient. r 4. But as to Common Scolds, and Descriptive Designations of this
Class, the Generic Description is enough. § 2381. This point will be more fully discussed in a subsequent section. 8
5. Bill of Particulars. § 2382. The generality of the indictment in nuisance, as in conspiracy, in many cases entitles the defendant to a bill of particulars, the practice as to which is elsewhere stated at large.t
$ 2383. The usual evidence is the actual effect of the alleged nuisance on the health and comfort of the community, as well as the probable influence, as determined by experts and others, of the agents of which the nuisance is composed, on such health and comfort. But only the nuisance specifically charged in the indictment can be proved. u And, as has been seen, only the direct and regular consequences of the defendant's act can be proved against him as a nuisance. v “General reputation," of course, cannot be admitted to prove or disprove nuisance. w But, as will be seen, the bad character of persons haunting a house of ill-fame
r Ante, $ 2366 ; Com. v. Webb, 6 and see R. v. Curwood, 5 Nev. & M. Randolph, 726; State v. Baldwin, 1 369. Dev. & Bat. 195 ; State v. Purse, 4 u Com. 2. Brown, 13 Met. 365. McCord, 472; People v. Cunningham, v R. v. Medley, 6 C. & P. 292. 1 Denio, 524; Com. v. Boynton, 12 Ante, $ 751, 2375. Cush. 499. See as to indictment for w Com. v. Hopkins, 2 Dana, 418; noxious trade, State v. Hart, 34 Me. Com. Stewart, 1 S. & R. 342; Over36.
street v. State, 3 How. (Missis.) 328; s See post, $ 2391.
State v. Foley, 45 N. H. 466. Ante, 1 See ante, $ 2360; post, $ 3155; $ 668; post, $ 2394-97.
may be put in evidence. x
V. OFFENCES TO RELIGION.
$ 2384. Anything that shocks the religious sense of the community is a nuisance.
Hence it is a nuisance to disturb public rest on the Lord's day by any conspicuous and noisy secular labor. y So, also, public gross and scandalous profanity is a nuisance ; though it is essential that such profanity should be alleged and proved to be in the hearing of divers persons. ył
VI. OFFENCES TO PUBLIC DECENCY. § 2385. Whatever scandalizes the public by shocking its sense of decency, is in like manner a nuisance. Hence it is indictable to indulge in habitual, open, and notorious lewdness ; z to permit dependants (in old times, slaves) to roam the streets in a state of nakedness ; a to openly and notoriously haunt houses of illfame;b to use habitually indecent or profane language in the presence of passers by and the public generally;c to parade stud horses through a city, letting them out to mares on the public streets ; d and to practise constant public and notorious drunkenness. e So a herbalist who publicly exposes and exhibits in his shop, on a highway, a picture of a man naked to the waist, and covered with eruptive sores, so as to constitute an exhibition offensive and disgusting, is guilty of a nuisance, although there is nothing immoral or indecent in the picture, and his motive is innocent. f But in all these cases the indictment must aver and the proof must show exposure and offence to the community generally ; as mere private lewdness, or indecency, is not indictable as a nuisance at common law.g
x Clementine v. State, 14 Mo. 112. 6 See Brooks v. State, 2 Yerger, Post, $ 2394.
482; State v. Cagle, 2 Humph. 414. y Com. v. Jeandell, 2 Grant, 506 ; c Barker v. Com. 7 Harris, 412; Com. v. Dupuy, Bright. R. 44; Linden- State v. Kirby, 1 Murphey, 254; State muller v. People, 33 Barbour, 548. v. Ellar, 1 Devereux, 267; Bell v. Ante, $ 6.
State, 1 Swan, 42. ya State v. Pepper, 68 N. C. 259. d Nolin v. Mayor, 4 Yerger, 163. See post, $ 2391.
e Post, $ 2386. See Smith v. State, z Peak v. State, 10 Humph. 99; 1 Humph. 396; State v. Waller, 3 State v. Moore, 1 Swan, 136. Post, Murphey, 229. $ 2391.
f R. v. Grey, 4 F. & F. 73. a Brittain v. State, 3 Humph. 203.
[As to exposure of person, see post, $ 2409.]
VII. OFFENCES TO HEALTH.
§ 2386. Any acts or omissions which, in the regular course of events, without the interposition of human agency, or of some extraordinary natural condition, are likely to generate disease or communicate infection, expose the person so acting or omitting to act to an indictment for nuisance. It is not necessary that the result should certainly flow from the cause.
In view of the great stakes involved, and of the anxiety of which the defendant's misconduct is certainly productive, a high probability of disease is sufficient. h
1. Unwholesome Food or Drink. § 2387. The exposure knowingly of unwholesome food, e.g. bread or meat, for sale in stalls or shops open to the public, is indictable as a nuisance ; i but it is necessary to sustain the indictment that the food must be something that it does not purport to be; e. g. that it must be putrid, or infected with some other disease or injurious quality, making it prejudicial to health.j Guilty knowledge is necessary to constitute the offence. k The carrier who knowingly brings such food to the market is equally responsible with the vendor ;l but if the meat is to be used for other than human food the indictment does not lie. m
g State v. Waller, ut supra.
ribus et aliis Vitellariis," if they do so h Meeker v. Van Renselaer, 15 knowingly, and probably if they even Wend. 397 ; People v. Townsend, 3 do not, and are liable civilly to the Hill N. Y. 479 ; State v. Buckman, vendee, without any fraud on their 8 N. H. 203; Watson v. Toronto part or warranty of the soundness of Gas Co. 4 Up. Can. Q. B. 158. See the thing sold: but a private person, ante, $ 751.
not following any of these trades, who i R. v. Haynes, 4 M. & S. 214; sells an unwholesome article for food, State v. Smith, 3 Hawks, 378 ; Hunter is not liable under such circumstances. v. State, 1 Head, 160. In England, Burnby v. Bollet, 16 M. & W. 644. victuallers, brewers, and other com- į People v. Parker, 38 N. Y. 85; mon dealers in victuals, who in the State v. Norton, 2 Iredell, 40 ; State course of their trade sell provisions v. Smith, 3 Hawks, 378; R. v. Stevenunfit for the food of man, are crimi- son, 3 F. & F. 106. nally responsible under 51 Hen. 3, k Ibid. See ante, $ 631, 647, 651, 672. • Pillor et Tumbrel,' &c.," and of I R. v. Jarvis, 3 F. & F. 108. Edw. 1, “ De Pistoribus et Hasiato- m R. v. Crawley, 3 F. & F. 109.