84 N.J.L. 550 | N.J. | 1913
The opinion of the court was delivered by
The indictments are identical except as to dates, and charge that the prosecutor, “a corporation, late of the city of Jersey City, in the said county of Hudson, on the first day of June, in the year of our Lord one thousand nine hundred and ten, and thence continuously from that day up to and including the day of the finding of this indictment, then and there being the owners of a certain railroad running through the city of Jersey City aforesaid, commonly known as the Pennsylvania railroad, in the near neighborhood of divers public streets in the said city and county aforesaid, where divers good citizens are constantly passing and re-passing and oí divers dwelling-houp.es in the city and county aforesaid inhabited and occupied by divers other good citizens aforesaid and within the jurisdiction of this court, on the days and times aforesaid, did, unlawfully, negligently, unskillfiilly and unnecessarily conduct a certain building com
A similar indictment was tried in State v. Erie Railroad, 54 Vroom 231, without question as to its sufficiency, at least in this court.
The first point made is that “the indictments are uncertain and ambiguous, and do not set forth facts with clearness sufficient to identify the accusations or to permit the defendants to prepare their defence.” Specifically, it is argued that the defendant has numerous railroads running through Jersey Cit}r; but there is no evidence of this before us. Again, that the streets are not named or located nor the location of the roundhouse stated, nor the engines specified; and that no facts are stated to show that the emission of smoke, &c., was
It is sufficient to say that these indictments seem to follow closely the recognized precedents. Nuisance being usually a continuing offence, the general allegations of time are proper. Bish. Dir. & F., §§ 81, 83. Generality in locating buildings and oilier landmarks is customary in an indictment for nuisance. Id., §§ 828, 829. These questions are substantially disposed of in State v. Uvalde Asphalt Co., 39 Vroom 512, where the matter is treated with some detail. As to the place where the nuisance was committed it is generally sufficient, if it be so stated, as to he within the county where the indictment is found. Ibid. The common law forms, in 3 Chit. Crim. L. *642 et seq., are in consonance with this rule. The general allegation of “unseasonable hours” is supported by the precedents of indictments for keeping noisy dogs (Id. *647), pursuing the trade of a coppersmith (Id. *663), or a brazier (Id. *664). It is true that these precedents relate particularly to noises, but it is not perceived why the rest and sleep of the public may not also he disturbed by smoke and smells, which may of course be a nuisance even in the waking hours. The claim that the particular engines ought to he specified is trivial. If the indictment be so general that it does not convey sufficient information to defendant to enable him to prepare his defence, particulars will be ordered. Rex v. Curwood, 3 A. & E. 815; Com. v. Snelling, 15 Pick. 331; State v. Hatfield, 37 Vroom 443; Bish. Cr. Pro., §§ 643, 645 (4). We deem the first point to be entirely without merit.
AText it is urged that “the frequency and persistency of the indictments and other’forms of action against the defendants, demonstrate a concerted movement which is oppressive, unjust, unfair and negatives the impartial character of the indictments which is essential to their validity.”
The next point rests on the well-settled proposition that defendant, a duly chartered railroad corporation, is entitled by law to emit smoke in operating its trains and thereby lawfully and necessarily cause inconvenience. That it is entitled to emit such smoke as is reasonabty necessary in the conduct of its businesss is undeniable. Beseman v. Pennsylvania Railroad, 21 Vroom 235; 23 Id. 221; Erie Railroad v. Jersey City, 54 Id. 92. But, on the other hand, it is not entitled to emit smoke denser and more offensive in qualit3r, and greater in volume, than reasonabty required for the proper operation of the railroad. Jenkins v. Pennsylvania Railroad, 38 Vroom 331; 57 L. R. A. 309. If such acts result in a public nuisance, plainly an indictment will lie; and this is precisely what is charged in the indictments before us.
The fourth point made is that the acts complained of must have been those of defendant's servants for which it is not responsible criminally. This involves the culpability of a principal for the acts of an agent. In the case of natural persons, a principal is prima facie liable (criminally) for the acts of an agent done in a general course of business authorized by the principal. R. v. Dixon, 3 M. & S. 11; Com. v. Nichols, 10 Metc. 259; 1 Russ. Cr. 109, 110. It does not seem to be claimed, as was done in Reg. v. Great North of England Railway Co., 9 Q. B. 315; 7 E. R. C. 466, that the
The last point is that the indictment is an interference with interstate commerce. Many cases are cited by counsel, but we fail to find any authority holding that the fact of being engaged in interstate commerce (assuming such facts, which does not appear on the face of the indictments) confers immunity from criminal liability for the creation of a public nuisance. We do not consider that the point merits serious discussion.
There is nothing in the case requiring a resort to the rule last laid down in State v. Johnson, 53 Vroom 330, 332, that the discretion to quash an indictment on motion will not he exercised unless upon the clearest and plainest ground; for we find nothing even doubtful in these indictments.
The motions to quash will be denied, and the indictments returned for trial to the Hudson Quarter Sessions, to which they were referred by the Hudson Oyer and Terminer