Horner v. State

49 Md. 277 | Md. | 1878

Alvey, J

, delivered the opinion of the Court.

The indictment in this case charges the defendant with maintaining a nuisance, in carrying on an offensive trade. The defendant demurred to the indictment, and the demurrer was overruled; and, upon plea of not guilty, the defendant was tried, and found guilty by verdict of a jury. He then made a motion in arrest, of judgment, and that was overruled ; and after judgment entered upon the verdict, the cause was brought here as upon writ of error, and the errors assigned are certain alleged defects in the indictment.

It is charged in the indictment that the defendant, “near unto divers roads and streets, and also near unto the dwelling-houses of divers liege inhabitants of the State, there situate and being, unlawfully and injuriously did use, and yet doth continue to use, a certain furnace and boiler, for the purpose of boiling the skins, hoofs, tripe, entrails and offal of beasts, before that time, &c., and unlawfully and injuriously did boil, &c., divers large quantities of skins, hoofs, tripe, and other parts and offal of beasts, by reason of which said premises, divers noisome, offensive and unwholesome smokes, smells and stenches, during the time, &c., were from thence emitted and issued, so that the air then and there was, and yet is greatly filled and impregnated with the said smokes, smells and stenches, and was, and is rendered, and become, and was and is corrupted, offensive, uncomfortable, and unwholesome, to the great damage and common nuisance of all the liege inhabitants of the State, there inhabiting, being and residing, and going and returning, and passing through the roads and highways.”

The objection taken to this indictment is, that it does not aver that the furnace and boiler were located near a public road or - highway, or at any place where the public have any right or interest, and consequently, what' is charged amounts to' nothing more than a private nuisance, for which no indictment lies. And whether the indictment does sufficiently charge a public offence is the sole question in the case.

And before stating what constitutes the elements of the offence, it may be proper to state, that, as a general proposition, every indictment must charge the crime of which the party is accused with such certainty and precision that it may be understood without the resort to intendments, and that all the elements to constitute the offence must be averred. This is important not only as means of notice to the accused, but as means of identification of the particular accusation, with a view to future protection against a second prosecution for the same offence.

This being the general rule in framing the indictment, let us see of what the crime consists, for which the defendant is indicted. -

And it will be found, upon examination of the authorities, tfiat there has been considerable difficulty experienced, in cases like the present, in determining what constitutes the public to be offended by the nuisance, and what degree of annoyance will subject the party causing it to public prosecution. In determining these questions, reference must always be had to the local situation of the nuisance complained of; and where the trade or business producing the alleged nuisance is in itself lawful, before it can be declared a nuisance, it must be shown to be in such proximity to public ways, or other places of public resort, as to be offensive to those passing or resorting to such places, or that it seriously incommodes the people generally in the neighborhood,or community where the trade is carried on. If, therefore, a party carry on an offensive trade or manufacture in a settled neighborhood, or near places of usual public resort or travel, whether the offence be to the sight, smell or hearing, it constitutes a nuisance, and subjects the party producing it to indictment and prosecution. And in conformity to this general doctrine we find the law laid down by BawJcins, in his Pleas of the Oroion, vol. 1, Bk. 1, ch. 32, sec. 10, where it is stated that a brew-house, erected in such an inconvenient place, wherein the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance ; and so in the like case may a glass-house or swine-yard. So, in the case of Rex vs. Smith, 2 Str., 704, where the defendant was indicted for making great noises in the night with a speaking-trumpet, to the disturbance of the neighborhood, it was held to be a nuisance, and the party was convicted and fined. So, again, in Rex vs. Pappineau, 2 Str., 686, an indictment charging a nuisance to consist in working a mill for steeping sheep-skins in water, near a highway, and also near several dwelling-houses, whereby the air was corrupted, was held to be sufficient. And in the case of Rex vs. White & Ward, 1 Burr., 333, buildings for making acid spirit of sulphur, whereby the air was impregnated with noisome and offensive stenches, near the King’s highway, and near several dwelling-houses, were declared to be a nuisance; and it was also held, that it is not necessary that the smell should be unwholesome.; it is enough if it renders the enjoyment of life and property uncomfortable. These cases have never been overruled, nor even questioned, so far as wre have been able to discover; and the doctrine maintained by them would seem to be founded both in principle and reason.

In this case the specific objection urged to the indictment is, that it does not charge the offence as having been committed against the public; that charging the source of the nuisance to exist “ near unto divers roads and streets, and also near unto the dwelling-houses of divers inhabitants of the State there situate and being,” is not sufficient, according to the argument for the defendant, to bring the case within the definition of a common nuisance. But in this we cannot agree with the counsel for the defendant.

As we have seen, it is sufficient to lay the nuisance to that portion of the general public that may pass and re-pass on the public highways, or to that portion of the public that may resort to any other public place to which any considerable number of people are in - the habit of resorting. Wood, L. Nuis., p. 30, sec. 20. This we do not understand to be controverted by the defendant. But it is insisted that the terms roads and streets, used in the indictment, should not be taken as descriptive of public roads and streets, but should be taken to mean private roads and streets, inasmuch as the statute law of the State recognizes and provides for opening private ways. Such construction, however, we do not feel justified in adopting. The noun “ road,” according to legal definition, means a passage through the country for the use of the people. 2 Bouv. L. Dic., 488. The ordinary and accepted meaning of the term is a way for public travel, unless qualified by the adjective “private,” or some other qualifying expression. Respublica vs. Arnold, 3 Yeates, 421. And so as to the noun “ street.” That term is defined to mean a public thoroughfare or highway in a city or village. 2 Bouv. L. Dic., 549, 551; 4 Sergt. & R., 106. Taking then these terms as meaning public ways or thoroughfares, the nuisance is sufficiently charged, according to all authority and precedent.

Bu1 it is also charged that the nuisance complained of is “ near unto the dwelling-houses of divers inhabitants of the State, there situate and being ;” and at the conclusion of the indictment the nuisance is alleged to be “to the great damage and common nuisance of all the liege inhabitants of the ¡State, there inhabiting, being and residing, and going and returning, and passing through the roads and highways.” It is true, this latter or concluding allegation, will not supply any defects in the preceding parts of the indictment. There must be sufficient facts charged in the body of the indictment to justify the .conclusion. Whart. Cr. L., sec. 2362; 2 Bish. Cr. Pro., sec. 812; Mains vs. State, 42 Ind., 327. But the allegation that the nuisance existed near the dwelling-houses of divers inhabitants of the State there being, would seem to be sufficient. In the case of Rex vs. Crunden, 2 Camp., 89, where the defendant was indicted for exposing himself naked while bathing on the sea-beach, the indictment contained two counts, as we find it in 2 Chitty Cr. L., 41; the first charging that the defendant exposed himself naked near to and in front of divers houses, and also near to a certain highway, and in the presence of divers persons; and the second charging only that he exposed himself naked to divers of the King’s subjects. The party was convicted, and the indictment was held to be supported by evidence that he bathed in the sea naked opposite to the East cliff at Brighton, on which cliff there was a row of inhabited houses, from the windows of which he could have been distinctly seen, while undressed. And it fully appears from the precedents, that the allegation that the nuisance existed to the dwellings of divers citizens or inhabitants, is sufficient. Whart. Prec., (3rd Ed ,) Nos. 706, 707, 708, 712, 719 and 721; 2 Whart. Cr. L., secs. 2363, 2364, 2378-9. See also, Reg. vs. Watson, 2 Cox Cr. Cas., 376, and Reg. vs. Webb, 1 Den. Cr. Cas., 338.

The indictment in the present case is very near in form to that used in the case of Rex vs. White & Ward, 1 Burr., 633; and, in that case, in speaking of the manner of charging the nuisance, the Court said: “It is sufficiently laid, and in the accustomed manner. The very existence of the nuisance depends upon the number of houses and concourse of people ; and this is a matter of fact to he judged of by the jury.”

(Decided 27th June, 1878.)

After careful examination of the indictment, in the light of authority and precedent, we think the oifence is sufficiently charged, and that the Court below committed no error in overruling the demurrer, and also the motion in arrest of judgment; and the judgment will therefore be affirmed.

Judgment affirmed.