101 Mass. 29 | Mass. | 1869
It was held in Commonwealth v. Smith, 6 Cush. 80, that it is necessary, in an indictment for a public nuisance by uttering loud cries and exclamations in a public street, to allege that it was to the great damage and common nuisance of all the citizens of the Commonwealth there inhabiting, being and residing. A similar allegation is found in the forms of indictments for causing noisome smells or letting off fireworks in a public street, or for keeping a gaming house or a disorderly house, and for other nuisances of a similar character. In England, such an allegation has been made unnecessary by St. 14 & 15 Vict. c. 100, § 25. But the proof need not be as extensive as the allegation. Proof of an indecent exposure of the person in a public omnibus is sufficient to sustain an indictment, though the number of persons who see it is very small. Regina v. Holmes, Dearsly, 207. The act must be of such a nature as tends to annoy good citizens, and does in fact annoy such of them as are present and not favoring it. But it may happen that there are persons present who give encouragement and countenance to the illegal act. In a disorderly house or a gambling house, such persons are always present. Yet that fact is no defence. The evidence offered on that point was not material, and was properly rejected.
Nor is there any material variance between the proof and the allegations. The allegation that the defendant uttered loud exclamations and outcries is sustained by such evidence as is stated in the bill of exceptions. Exceptions overruled.