Commonwealth v. Sweeney

131 Mass. 579 | Mass. | 1881

Devens, J.

The defendant moved to quash and afterwards in arrest of judgment because the indictment did not allege the nuisance to be “ to the great damage and common nuisance of all the citizens of the Commonwealth.” It is often said that, in cases of nuisances at common law, the indictment should conclude with the allegation that the offence was committed to the common nuisance of the people of the Commonwealth. Commonwealth v. Boon, 2 Gray, 74. Commonwealth v. Parker, 4 Allen, 313. By this nothing more is meant than that it should be alleged to be to the damage and common nuisance of those people of the Commonwealth so situated as to be liable to be affected by it. It would not be easy to imagine a nuisance which would directly affect all the people of the Commonwealth. But a nuisance is properly a subject of public prosecution if it affect the public generally in the place where it may be created or where its influence may be felt, and the office of the allegation ad commune nocumentum is performed if it avers the nuisance complained of to be to the injury of that portion of the public. It is thus sufficiently averred to be something more than injurious to particular persons, whose only redress would be by private actions. In Commonwealth v. Smith, 6 Cush. 80, the indictment, which was for a nuisance caused by uttering tumultuous outcries, was held bad, it being only alleged to have been to the disturbance of divers citizens, that is, to the disturbance merely of a portion of the public in its vicinity; and it is said by Mr. Justice Dewey that the cries should have been alleged to the great damage and common nuisance of all citizens of the Commonwealth there inhabiting, being and residing, &c. In Commonwealth v. Harris, 101 Mass. 29, and Commonwealth v. Oaks, 113 Mass. 8, which were indictments of a similar character, and which concluded, “ to the great damage and common nuisance of all the citizens of the Commonwealth there inhabiting, being and residing,” no question of their sufficiency was made.

In the present case, while it is alleged that the offensive collection of filth is situate near the dwelling-houses of divers persons, it is alleged to be to the common nuisance of the inhabitants of said houses, and also to that “ of all other persons then and there passing upon and along the said public road and highway.” In the opinion of a majority of the court, this sufficiently avers the nuisance to be public in its character, and properly to be remedied by a public prosecution. Exceptions overruled.