ÆäÀÌÁö À̹ÌÁö
PDF
ePub

generally; as mere private lewdness, or indecency, is not indictable as a nuisance at common law. g

[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. The carrier who knowingly brings such food to the market is equally responsible with the vendor; 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. h Meeker v. Van Renselaer, 15 Wend. 397; People v. Townsend, 3 Hill N. Y. 479; State v. Buckman, 8 N. H. 203; Watson v. Toronto Gas Co. 4 Up. Can. Q. B. 158. See ante, § 751.

i R. v. Haynes, 4 M. & S. 214; State v. Smith, 3 Hawks, 378; Hunter v. State, 1 Head, 160. In England, victuallers, brewers, and other common dealers in victuals, who in the course of their trade sell provisions unfit for the food of man, are criminally responsible under 51 Hen. 3, "Pillor et Tumbrel,' &c.," and of Edw. 1, "De Pistoribus et Hasiato

ribus et aliis Vitellariis,” if they do so
knowingly, and probably if they even
do not, and are liable civilly to the
vendee, without any fraud on their
part or warranty of the soundness of
the thing sold: but a private person,
not following any of these trades, who
sells an unwholesome article for food,
is not liable under such circumstances.
Burnby v. Bollet, 16 M. & W. 644.
j People v. Parker, 38 N. Y. 85 ;
State v. Norton, 2 Iredell, 40; State
v. Smith, 3 Hawks, 378; R. v. Steven-
son, 3 F. & F. 106.

k Ibid. See ante, § 631, 647, 651, 672.
1 R. v. Jarvis, 3 F. & F. 108.
m R. v. Crawley, 3 F. & F. 109.

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. o 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. q

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. r 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 nuisance, 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. o Goodrich v. People, 3 Parker C. R. 622. p Ibid.

q Ibid.

r R. v. Vantandillo, 4 M. & S. 73; R. v. Burnett, 4 M. & S. 272; R. v. Henson, Dears. C. C. 24.

s Ante, § 2386; Meeker v. Van Renselaer, 15 Wend. 397.

t Ante, § 2367.

u Ante, § 2368.
v Ante, § 2373.
w Ante, § 2367.

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.

sance.

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 nuiHere the law also is, that in such case the industry must retire, to take up its seat in a district to which population has 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. z It should be remembered, however, that no mere sentimental or nervous sensibility will be

x See Ellis v. State, 7 Blackf. 534. y See ante, § 2376. Thus, on the ground that a gas manufactory is essential to the comfort and safety of cities, it has been ruled in a case already cited, that when such a manufactory is chartered for the purpose by the legislature, no indictment lies when

the processes adopted for the purpose
are the best that can be applied, and
when due care and diligence has been
shown. People v. N. Y. Gas Light
Co. 64 Barb. 55. See Com. v. Reed,
34 Penn. St. 275. Ante, § 2376.
z See Com. v. Upton, 6 Gray, 478;
Ashbrook v. Com. 1 Bush, 139.

ground for a conviction. The "nuisance" must be reasonably offensive. a

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 cover. c 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 BARRATORS: " 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. g

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.

b People v. Sands, 1 Johns. 78; Cheatham 8. Shearon, 1 Swan (Tenn.), 213; R. v. Lister, Dears. & B. 209; Williams v. East India Co. 2 East, 192, 201; Trueman v. Casks, &c., Thacher's C. C. 14.

c See ante, § 2376.

d Com. v. Kidder, 107 Mass. 188. Ante, § 2376.

e Com. v. Pray, 13 Pick. 359; James

v. Com. 12 S. & R. 220; Com. v. Davis, 11 Pick. 432; U. S. v. Royall, 3 Cranch C. C. R. 618; Com. v. Mohn, 2 P. F. Smith (52 Penn.), 243; 6 Mod. 618; 9 Cow. 587; Com. v. Foley, 99 Mass. 497. Contra, Com. v. Hutchinson, 5 Clark Pa. R. 321.

f U. S. v. Royall, ut supra.

g James v. Com. 12 Serg. & R.

220.

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. 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. And it may be committed by stealthily lurking about a grand jury, and repeating abroad their secret transactions. m

Open and gross lewdness is in some jurisdictions indictable by statute. n But in one state it has been held that this is not designation of character, but a conclusion of law, of which it is necessary to state the premises of fact. o 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. q

Common drunkenness may 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; Bell v. State, 1 Swan, 42.

j Com. v. Pray, 13 Pick. 359; Com. v. Mohn, 2 P. F. Smith (52 Penn.), 243.

k U. S. v. Royall, ut supra.

1 4 Bl. Com. 168.

m Ante, § 6, 375.

n Grisham v. State, 2 Yerger, 589; where it was held that to an indictment against two for lewdness, it is no defence that the parties were married by rites not recognized by the state as

[blocks in formation]

o Dameron v. State, 8 Mo. 494. p Brooks v. State, 2 Yerger, 482. Peak v. State, 10 Humph. 99. r See Smith v. State, 1 Humph. 396; State v. Waller, 3 Murphey, 229; Com. v. Boon, 2 Gray, 74.

s Com. v. Cassidy, 6 Phila. Rep. 82. "This indictment charges the unlawful circulation of a false report by hand-bills posted on the corners of the public streets, and other public places

« ÀÌÀü°è¼Ó »