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The same rule applies to the exposure to use of unwholesome water. n But it should be remembered, that much food is unwholesome which it is not indictable to sell; e. g. rich and highly seasoned dishes. Hence it is not enough in the indictment to aver the selling of “unwholesome food ;” but the kind of food (e.g. beef) must be mentioned, and it must be averred to be diseased, or so spoilt or infected as to make it unwholesome. But the offence is completed by the sale of food the seller knows to be diseased and poisonous, without proof of sickness caused thereby, or averment or proof that the food was sold to the vendees to be eaten by them. p The names of the vendees, not being material to constitute the offence, need not be averred. I
2. Contagious Diseases. $ 2388. So, for the same reasons, it is indictable to expose to the public a human being or brute animal having a contagious disease ; nor is it necessary in such case that the indictment should aver a nuisance. And so, as has been seen, doing anything, or maintaining any building or institution likely to generate infection, is indictable. 8
VIII. OFFENSIVE INDUSTRIES.
§ 2389. Can an industry which is essential to the public welfare be convicted and abated as a nuisance, because it is offensive to the vicinity ? This is a question that has been already discussed, and will be noticed in some of its relations hereafter. It has been seen that no prescription can be pleaded for a ntisance, t and that neither collateral benefit worked by it to the community, u nor the good intent of the projector, v is a defence. It has also been seen that when population moves up to a nuisance, which previously was in a solitude, then, as a general rule, the nuisance must recede. w As, however, this is a rule subject
n State v. Buckman, 8 N. H. 203. s Ante, $2386; Meeker v. Van o Goodrich v. People, 3 Parker C. Renselaer, 15 Wend. 397. R. 622.
t Ante, $ 2367.
U Ante, $ 2368. 9 Ibid.
v Ante, $ 2373. ✓ R. v. Vantandillo, 4 M. & S. 73; w Ante, $ 2367. R. v. Burnett, 4 M. & S. 272; R. v. Henson, Dears. C. C. 24.
to some exceptions, it is better to view it as it bears on three distinct conditions of fact.
First, when the industry is originally planted in a populous community. Here there can be no question. The industry, if a nuisance, must be abated.
Secondly, when the industry is originally planted within the limits of an incorporated city or village, but where there are no dwelling places in the vicinity at the time of its origination. The law, in this case, is clear. Whoever builds in a district set apart especially by the law for urban purposes, does so with notice that anything inconsistent with such purposes must be abandoned when the comfort of the population requires the surrender.
Thirdly, when the industry is originally planted in an uninhabited district, not part of an incorporated city or village, and is subsequently approached by population to whom it is a nuisance. Here the law also is, that in such case the industry must retire, to take up its seat in a district to which population bas not yet reached. Yet it is impossible to study the cases without seeing that the question is treated as one of expediency, as the issue (that of comfort) indeed invites. Whose expulsion would produce the most general inconvenience — the “nuisance," or the population ? If the “nuisance” is essential to the community at large, — if it cannot be pushed into remoter and more desolate regions without great inconvenience, — if the population affected by it can with comparatively little inconvenience retire, - then the latter cannot claim that the former be expelled. x Of cases such as these we have illustrations in the various public works instituted by government or chartered corporations for travel. y On the other hand, when the "nuisance" can be readily sequestered to a more secluded spot, while the population has taken root, and cannot readily be moved, then the former must give way to the latter. 2 It should be remembered, however, that no mere sentimental or nervous sensibility will be ground for a conviction. The “nuisance” must be reasonably offensive. a
* See Ellis v. State, 7 Blackf. 534. the processes adopted for the purpose
y See ante, § 2376. Thus, on the are the best that can be applied, and ground that a gas manufactory is essen- when due care and diligence has been tial to the comfort and safety of cities, shown. People v. N. Y. Gas Light it has been ruled in a case already Co. 64 Barb. 55. See Com. v. Reed, cited, that when such a manufactory 34 Penn. St. 275. Ante, $ 2376. is chartered for the purpose by the z See Com. v. Upton, 6 Gray, 473; legislature, no indictment lies when Ashbrook v. Com. i Bush, 139.
IX. EXPLOSIVE COMPOUNDS. § 2390. It is a nuisance at common law to keep or manufacture any explosive compounds in such a way as to be productive of terror or peril to the community. b Licenses for this purpose are to be strictly construed, and the party using them to be held to a close conformity to their restrictions. Nor will they be stretched to authorize any offence they do not expressly
Thus a license from government to manufacture or keep on hand petroleum under such conditions as will prevent explosion, is no defence to an indictment against the manufacturer of such petroleum in such a way as to diffuse unwholesome and offensive vapors. d
X. "COMMON SCOLDS,” “COMMON BRAWLERS,” AND “COMMON BARRA
TORS:” EAVESDROPPING," "OPEN AND GROSS LEWDNESS,” “COMMON DRUNKENNESS." $ 2391. When a woman is habitually addicted to scolding at and before persons in general, on the highway, or in a populous neighborhood, or in such a way as to disturb passers by, she may be indicted as a common scold; and it is enough if the indictment simply avers her to be such. e Anger or malice is not a necessary constituent of the offence. f Ducking, however, which was the old common law punishment, is now obsolete. I
Common brawlers are in some states indictable by statute ; in others at common law. It is not necessary to constitute this offence, or that of a common scold, that the brawling and scolding should be in the public streets. If it takes place within a house, and yet is so vehement and vituperative as to disturb the public peace outside, it is indictable. h A common profane swearer,
a Ante, $ 2366.
v. Com. 12 S. & R. 220; Com, v. Dab People v. Sands, 1 Johns. 78; vis, 11 Pick. 432; U. S. v. Royall, 3 Cheatham Shearon, 1 Swan Cranch C. C. R. 618; Com. v. Mohn, (Tenn.), 213; R. v. Lister, Dears. & 2 P. F. Smith (52 Penn.), 243; 6 Mod. B. 209; Williams v. East India Co. 2 618; 9 Cow. 587; Com. v. Foley, 99 East, 192, 201; Trueman v. Casks, Mass. 497. Contra, Com. v. Hutchin&c., Thacher's C. C. 14.
son, 5 Clark Pa. R. 321. c See ante, $ 2376.
f U. S. v. Royall, ut supra. d Com. v. Kidder, 107 Mass. 188. g James v. Com. 12 Serg. & R. Ante, $ 2376.
220. e Com. v. Pray, 13 Pick. 359; James h Com. v. Foley, 99 Mass. 497.
or user of indecent language, is in like manner and with like limitations, indictable at common law. i
A common barrator, e. g. a person who habitually addicts himself to the fomenting of vexatious and groundless litigation in the public generally, or among citizens, irrespective of any private relations he may sustain to them, is likewise indictable as a nuisance at common law.j
Eavesdropping may, in like manner, be indictable as a nuisance.k It should, however, to be indictable at common law, be habitual, and combine the lurking about dwelling-houses, and other places where persons meet for private intercourse ; secretly listening to what is said ; and then tattling it abroad. l And it may be committed by stealthily lurking about a grand jury, and repeating abroad their secret transactions. m
Open and gro88 lewdness is in some jurisdictions indictable by statute. n But in one state it has been held that this is not a designation of character, but a conclusion of law, of which it is necessary to state the premises of fact. And to sustain a charge of haunting houses of ill-fame, there must be a scienter.p The evidence by which such an indictment may be sustained is necessarily circumstantial. 9 Common drunkenne88
be treated as a nuisance when it is such as habitually to shock, molest, and disturb the community at large.r
Publishers of false alarms, or of intelligence calculated to disturb the peace of a community, on the same principles on which common scolds and common barrators are indictable, are subject, if the offence be continuous and directed at the community generally, to penal discipline. 8
i Barker v. Com. 7 Harris, 412; legal. For illicit cohabitation, see Bell v. State, 1 Swan, 42.
post, $ 2669. j Com. v. Pray, 13 Pick. 359 ; Com. o Dameron v. State, 8 Mo. 494. v. Mohn, 2 P. F. Smith (52 Penn.), p Brooks v. State, 2 Yerger, 482. 243.
Peak v. State, 10 Humph. 99. k U. S. v. Royall, ut supra.
r See Smith v. State, 1 Humph. 1 4 Bl. Com. 168.
396 ; State v. Waller, 3 Murphey, 229; m Ante, $ 6, 375.
Com. v. Boon, 2 Gray, 74. n Grisham v. State, 2 Yerger, 589; s Com. v. Cassidy, 6 Phila. Rep. 82. where it was held that to an indict- “ This indictment charges the unlawment against two for lewdness, it is noful circulation of a false report by defence that the parties were married hand-bills posted on the corners of the by rites not recognized by the state as public streets, and other public places
XI. DISORDERLY, TIPPLING, AND BAWDY-HOUSES.
1. Definitions and Characteristics. § 2392. Independently of special statutes, a disorderly house, when kept in such a way as to disturb, annoy, or scandalize the public generally, or the inhabitants of a particular vicinity, or the passers in a particular highway, is indictable at common law, t and an inn, or building to which the public have access generally, may be “disorderly" when the disorder is only inside, and is not heard outside, if it disturb those who have right of access to the house. u So, though a mere tippling-house is not per se a nuisance at common law ;ut yet it is otherwise with a house kept for promiscuous and noisy tippling, promoting drunkenness in a community. v So, also, a house of ill-fame, or bawdy-house where promiscuous, illicit, sexual intercourse is encouraged, is a nuisance at common law. w
Disorderly, tippling, and bawdy-houses are plainly distinguishable. As, however, they are often blended in one count, and as the decisions bearing on them speak generally of the offence thus blended, they will here be considered under one general in the city, calling on the citizens to brought under such influences.” Allook out for a child stealer, describing lison, J., 1865. her as a woman about twenty-four t Hunter v. Com. 2 Serg. & R. 298; years of age, &c. The hope is sug- State v. Bailey, 1 Foster, 343 ; Clemgested that she may be discovered and entine v. State, 14 Mo. 112; State v. brought before the public, where she Stevens, 40 Me. 559; Hackney v. may be observed by both heads of State, 8 Ind. 494. families and their children, &c. That u State v. Matthews, 2 Dev. & Bat. this publication given to the public in 424. the manner above stated, constitutes, ul Com. v. McDonough, 13 Allen, in whatever light it may be viewed, a 581. common nuisance, cannot, we think, v U. S. v. Columbus, 5 Cranch C. be well questioned; that it is injuri- C. R. 304; R. v. Rice, Law R. 1 C. C. ous to both the comfort and health of 21 ; Wilson v. Com. 12 B. Monr. 2; a large number of persons in the com- State v. Bertheol, 6 Blackf. 474. A munity in which the report has been license to sell liquor does not protect put in circulation, is self-evident, be- such a house. State v. Buckley, 5 cause its tendency is to fill the mind Harring. 508; State v. Mulliken, 8 with anxiety, fear, and alarm, to the Blackf. 260. See Del. Canal Co. v. absolute destruction of the comfort Com. 60 Pa. St. 367; State v. Thornand happiness of many, and by this ton, Busbee, 252. Ante, $ 2376. means is, to a greater or less extent, w 4 Bl. Com. 168; State v. Evans, injurious to the health of persons 5 Iredell, 603.