35 Iowa 221 | Iowa | 1872
On the trial the court, against defendant’s objection, admitted witnesses to testify that the noise made by hogs in the inclosure or pens of defendant was very great and annoying at night to persons residing in the neighborhood ; and this ruling is assigned as error.
Our statute (Rev., § 4409) provides, that “ The erecting, continuing or using any building or other place for the exercise of any trade, employment, or manufacture which by occasioning noxious exhalations, offensive smells, or other annoyances, becomes injurious and dangei’ous to the health, comfort, or property of individuals or the public; the causing or suffering any offal, filth, or noisome sxibstanee to be collected or remain in any place'to the prejudice of others * * * are nuisances.”
TJnder this statute and the indictment in this case, the annoyances resulting from the erection and maintenance of the nuisance charged constituted the gist of the offense,
If the evidence was competent for any purpose its admission was not erroneous.
In Rex v. Russell, 6 Barn. & Cress. (Eng. Com. L. R., vol. 13, p. 254), 566, it was held by Mr. Justice Bayley, at nisiprius, that where a great public benefit accrues, from which arises the abridgment of the right of passage, that abridgment is not a nuisance, but proper and beneficial. But in Rex v. Ward, 4 Adolph. & E, 384 (31 Eng. Com. L. 92), Bussell’s case was expressly overruled by the court of king’s bench, and it is there held that a defendant, indicted for nuisance, “will not be permitted to show that the public benefit resulting from his act is equal to the public inconvenience which arises from it.” In support of this doctrine, see, also, Respublica v. Caldwell, 1 Dall. 150; Angell on Tide-waters, chap. 8; Roscoe’s Cr. Ev., pp. 568, 790; Hart v. The Mayor, etc., of Albany, 9 Wend. 571, 582; Wharton’s Am. Cr. Law (3d ed.), 799. and cases cited; 3 Greenl. on Ev., § 187.
III. It is next urged that the second and fourth instructions given by the court were erroneous. These instructions are almost in the precise language of section 4409 of the Revision defining the crime of nuisance, and clearly mean the same thing, and, fairly construed, could not have misled the jury.
This section defines what acts constitute nuisances, and section 4412 (of the same chapter) provides, that “ Whoever is convicted of erecting, causing or continuing a public nuisance or common nuisance as described in this chapter or at common law, when the same has not been modified or repealed by the statute, * * * shall be punished by a fine not exceeding $1,000, and the court, with or without such fine, may order such nuisance to be abated and issue a warrant,” etc.
We need not determine whether each of the nuisances defined in section 4409 are not to be considered public nuisances, and as such indictable, for it is clear that the acts charged in the indictment in this case constitute a public indictable nuisance, both under this section and at common law. The indictment charges that the acts specified occasioned noxious exhalations, offensive and unwholesome smells, so that the air was then and there greatly corrupted and infected thereby, becoming and being dangerous to the health, comfort, etc., of all the good people oí the State there passing, repassing, being or residing. It also alleges that the inclosure from whence issued these noxious exhalations and offensive and un
Affirmed.