6 Park. Cr. 347 | N.Y. Sup. Ct. | 1867
The evidence which the court allowed to be given showing the condition of the premises in question, after the finding of the indictment and down to the time of the tial, should not have been admitted. It was entirely foreign to the issue the jury were to try, and would necessarily lead to a reversal of the judgment if it were not entirely certain that the
The bill of exceptions contains a statement that the facts were proved, which it was claimed on the trial established the offense charged in the indictment. And if they were proved as so stated, they were not open to controversy or question by either the court or jury. The only question then arising would be as to their legal effect. If they were sufficient to constitute the offense in law, there was but one duty left to the court and jury, which was to convict the accused, and that, too, without reference to the other evidence that might have been given in the case. The facts which are stated as having been proved on the trial, and which, of course, were not open to question, were that the accused slaughtered animals for his meat
The supposition that persons who erect and occupy their dwellings where they may be affected by a nuisance already erected and maintained, have no legal right to complain of the annoyance it may occasion them, seems to have been derived from what was incidentally and unnecessarily said by Abbott, Ch. J., in the case of Rex v. Cross (2 Car. and Payne, 226). The case was decided at Nisi Prius, and this point was in no manner involved in it. And what was said upon it is in conflict with Orunden’s case (2 Camp. 89), and Sudley’s case (Sid., 168; Roscoe’s Crim. Evid.. 795); and with the decision of the Court of General Sessions of
But as to that part of the judgment which enjoins the the accused from continuing his business, and directs the abatement of the nuisance, different considerations are presented. It is only where the indictment avers a continuance of the nuisance, and where it shows the business itself to be of that character, that a judgment like that rendered in this case can be proper. (Rex v. Pappineau, 1 Strange, 678; Munson v. The People, 5 Parker, 16.) The indictment in this case does neither. It avers that the plaintiff in error unlawfully and injuriously slaughtered his animals at the slaughter house in question, but not that any annoyance or disturbance of the public was caused by that. It was from the offal and other refuse material which he caused and permitted to be and remain near the dwellings and the highway that the unwholesome and offensive stenches are averred to have arisen, which corrupted and infected the air, and created the nuisance under this allegation of the offense. The court had no power whatever to restrain the plaintiff in error from continuing the business of slaughtering animals at his slaughter house. And the cause which is thus alleged to have constituted the nuisance is averred to have remained a long space of time, to wit: for the space of one month; which by no rule of construction, however liberal, can be held to aver a continuance of the nuisance beyond that. From this manner of charging the offense, it is clear that the record furnishes no ground on which that part of the judgment can be maintained which enjoins the plaintiff in error from continuing the business of slaughtering animals at his slaughter house, and which directs the abatement of the nuisance. The case was one for fine and imprisonment, or either, as