judgment for the State; and motion for a new trial Nov. Term, overruled. Certain instructions were asked by the defendant 1856. HACKNEY V. which the Court refused to give. The tenor of these THE STATE. instructions were, that if the jury should find it an annoyance to only a part of the citizens, they should find the defendant not guilty: the remedy in such case being by civil action. These instructions were correctly refused. It may be observed generally that every nuisance is annoying to only a few of the citizens of the particular place. They are the public of that locality. It is a public nuisance if it annoy such part of the public as necessarily come in contact with it. If A. obstruct a spring branch to which B. has a right, or divert it from its natural course, either of these acts may be a private nuisance to B., but the public might not be thereby annoyed. Hence, B.'s remedy would be by civil action. But disorderly inns, gaming houses, and the like, ordinarily erected in such places as are densely populated, or much frequented, are public nuisances,-so regarded at common-law. 1 Hawk. P. C. ch. 75.-4 Black. Com. 166.-1 Russ. 318. They are offensive to such part of the public as necessarily pass or resort thither. They are to be prosecuted as any other public offense. Thus, any thing offensive to the sight, smell, or hearing, erected or carried on in a public place where the people dwell or pass, or have a right to pass, to their annoyance, is a nuisance at common law. The People v. Cunningham, 1 Denio, 524.-The People v. Sands, 1 Johns. 78.-Archb. Cr. Pl. title "Nuisance."-Hawk. P. C. 112.-3 Black. Com. 315.-5 Bac. Abr. 147. The charge here is almost identical with that in The State v. Bertheol, 6 Blackf. 474, and Bloomhuff v. The State, 8 Blackf. 205. The statute declared that a nuisance was an offense punishable by indictment, (R. S. 1843, p. 974,) and left the courts to look to the common law for a definition of the offense. Thus, in 6 Blackf. supra, the Court by Judge DEWEY say: "Our statute pre 1856. Nov. Term, scribes the punishment for a common nuisance; but it does not define the offense. We must, therefore, refer to the common law to learn in what it consists." HACKNEY V. THE STATE. But there is not now in this State any such thing as a common-law offense. We cannot look to the common law for the definition of a nuisance or any other crime. "Crimes and misdemeanors must be defined, and the punishment therefor affixed, by statutes of this State, and not otherwise." 1 R. S. p. 352.-Brutton v. The State, 4 Ind. R. 601. It is very clear that the definition may be particular, as in the 17th section of the liquor act of 1853, or it may be general. In the 17th section, supra, the legislature define one species of nuisance, and affix the punishment. Acts of 1853, p. 89. It clearly follows that, unless the legislature have by some general or particular definition declared what shall constitute a nuisance, so as to embrace the offense here charged, and prescribed the proper punishment therefor, there cannot now be any such offense in this State. Through all the revisions, from 1831 to the present time, the following has been the general enactment on the subject of nuisance. "Every person who shall erect or continue and maintain any public nuisance to the injury of any part of the citizens of this State, shall be fined not exceeding 100 dollars." R. S. 1843, p. 974.2 R. S. 1852, p. 428. In the revision of 1843, keeping open saltpetre caves, or others of noxious quality, and tippling-houses kept in a disorderly manner, were defined as common nuisances. R. S. 1843, p. 975. The definition of tippling-houses is substantially retained in the revision of 1852. 2 R. S. p. 429. With the general enactment above quoted before them, this Court has decided that it was not a definition of a nuisance, but simply prescribed the punishment. 6 Blackf. supra. If it was not a definition then, it is not a definition Nor can we now, as then, look to the common law for a definition. Unless there be some statute giving either a general or particular definition of a nuisance, which could by reasonable intendment be made to em now. brace the facts stated in the information, the judgment Nov. Term, cannot be sustained. In the code of civil practice we find the following definition of a nuisance, viz.: "Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance." 2 R. S. p. 175. Thus have the legislature defined or declared what shall constitute a nuisance, as they had the right to do. Bepley v. The State, 4 Ind. R. 264. Indeed, the legislature has, ever since the existence of the State, assumed to declare what shall constitute a nuisance, and that, too, both generally and specially. Per Curiam.-The judgment is affirmed with costs. D. C. Chipman, for the State. (1) Counsel for the appellant cited 3 Black. Com. Wend. ed. 122, 216; 4 id. 167; 5 Bac. Abr. 147, 152; 2 Carr. and Payne, 483. 1856. THE STATE V. TAYLOR. THE STATE v. TAYLOR. APPEAL from the Grant Court of Common Pleas. Friday, Per Curiam.-Information against Taylor for failing 1857. January 23. to comply with the assessment law. On motion of Taylor, the Court below quashed the information. The State appeals. This case is similar to that of The State v. Atkinson, decided at the present term (1). For the reasons there given, the same judgment must follow. VOL. VIII.-32 Friday, January 23, 1857. MARSHALL . THE STATE. Where several persons are jointly charged, but separately tried, they are APPEAL from the Henry Court of Common Pleas. Per Curiam.-Information for assault and battery. Marshall offered as a witness one Cray, charged in the information for the same offense, but who was not on trial, and was willing to testify. On objection made, the Court excluded the witness, and Marshall excepted. This was erroneous. Where several persons are jointly charged but separately tried, they are competent witnesses for each other if they consent to testify. Everett V. The State, 6 Ind. R. 495. The transcript of a justice of the peace, setting forth a conviction of Marshall for an assault and battery on the same party, was offered in evidence, but being objected to, was excluded. This was also erroneous. It should have gone to the jury for what it was worth. To reap any benefit from it, Marshall must still identify the transaction; otherwise it was but a link in the chain of evidence going to show a former conviction for the same offense. The judgment is reversed with costs. Cause re- Nov. Term, manded, &c. W. Grose, for the appellant. J. Brown, for the State. 1856. BOSWELL V. THE STATE. BOSWELL and Others v. THE STATE. Malicious trespass. The affidavit and information alleged that the defendants unlawfully, maliciously, and mischievously did injure and cause to be injured, a sign, the property of, &c., of the value, &c., to the damage, &c. Held, that the phrase "injured and caused to be injured," is not objectionable. But it seems that the offense is not sufficiently described; the specific injury should have been shown. Errors must be specially assigned: a statement that "every order made against the defendant was erroneous," is too vague. Where the evidence is not in the record, this Court will presume that the action of the Court below, in overruling a motion for a new trial, was correct APPEAL from the Tippecanoe Court of Common Friday, Pleas. Per Curiam.-Information for malicious trespass. 1. In overruling the motion to quash. The affidavit and information allege that the defendants unlawfully, maliciously, and mischievously did injure and cause to be injured, a sign, the property of, &c., of the value of 16 dollars, to the damage of the proprietor, &c., 16 dollars. The phrase, "injured and caused to be injured," is not objectionable. The State v. Kuns, 5 Blackf. 314. The January 23, 1857. |