151 N.Y.S. 710 | N.Y. App. Div. | 1915
I think that there is proof of an excess of noise, of odors and possibly of pests in the conduct of defendant dairyman’s station and stables, to justify conviction of a public nuisance under subdivision 1 of section 1530 of the Penal Law.
The defendant insists that there is no proof of criminal intent. None is necessary. The statute is silent and intent is not a necessary element of such a crime. (People v. Kibler, 106 N. Y. 321.) Whether the defendant conducted its lawful business with good'or evil intent was immaterial. (Taylor v. People, 6 Park. Cr. Rep. 347; 2 Whart. Crim. Law [11th ed.], §§1686,1687; 1 Bish. New Crim. Law, § 1075. See, also, People v. Borden’s Condensed Milk Co., 165 App. Div. 711.) When the business itself is lawful the primary question is one of relative rights. (1 Wood Nuis. [3d ed.] 16 and notes.) And the proceeding is criminal in form because the nuisance is public, as affecting a considerable number of persons. (Mellor, J., in Regina v. Stephens, L. R. [1866] 1 Q. B. 702; People v. Branchport & Penn Yan Plank R. Co., 5 Park. Cr. Rep. 604.) The purpose of the statute is to prevent the recurrence of the nuisance, not to punish,. although punishment must be prescribed in order to make the statute effective. Then it is neither essential nor logical to consider the intent of the maker of the nuisance. If it were, the purpose of the statute would almost invariably be defeated in cases when the business was lawful, for how could it be shown that one would so conduct such business with the purpose of doing what the law forbids and punishes ? The “ evil and malicious spirit ” would profit and would lead to punishment and to loss. In People v. Eckerson (133 App. Div. 220),
I think that an order for abatement could have been made under section 953 of the Code of Criminal Procedure, but that the present order should not stand. The defendant protested against it, excepted to it, and contends that it was not justified because the proof was limited to a period determined by the filing of the information May 12, 1914, while the order was made on June 3, 1914. The information is that “ on February 15th, 1914, and continuously thereafter until the day of the filing of this information,” the defendant “did annoy,” etc. This is sufficient, under the authorities, to confer jurisdiction. (1 Bish. New Crim. Law, § 1079, citing authorities; Rex v. Stead, 8 T. R. 142; Munson v. People, 5 Park. Cr. Rep. 16; State v. Noyes, 10 Foster [N. H.], 279, 298; Russell Crimes [7th Eng. ed.], 1833-1839.) It is true that the evidence indicates that there has been some cessation of the noise, and that the causes both of it and of the odors have been partially done away with. And it'is also true that the proof of continuance is not strong, due somewhat to the limitations made by the court. But the presumption of the continuance that arose after proof of the nuisance, together with bits of evidence that cropped out here and there, are sufficient to sustain an order for abatement. When it appears that the public nuisance is in the doing of a lawful business, there cannot be abatement to the extent of closing out the business if a change in the manner of its doing will remove the evils. (Babcock v. City of Buffalo, 1 Sheld.
Burr, Thomas, Carr and Putnam, JJ., concurred.
Judgment of conviction of the Court of Special Sessions affirmed, and order of abatement modified in accordance with opinion, and as modified affirmed. Order to be settled before the presiding justice.