CHAPTER III. NUISANCE (674) General frame of indictment. OBSTRUCTIONS TO HIGHWAYS AND WATERCOurses. (675) Erecting a gate across a public highway. (676) Erecting and continuing a house, part of which was on the highway. (677) Obstructing a common highway, by placing in it drays. (678) Same with filth, &c. (679) Letting off fireworks in the public street. (680) Keeping a pond of stagnant water in a city. (681) Placing a quantity of foul liquor, called "returns," in the highway. (682) Laying dung near a public street, whereby the air was infected, and inhabitants annoyed. (683) Letting wagons stand in a public street, so as to incommode passengers. (684) Placing casks in the highway. (685) Leaving open an area on foot pavement in a street. (686) Laying dirt in a footway. (687) Keeping a ferocious dog. (688) Profane swearing in a public street. (689) Obstructing townways in Massachusetts, under the statutes of 1786, c. 67, s. 7, and 1786, c. 81, and s. 6. (690) Blocking up the great square of a town-house in Pennsylvania. (691) Erecting a wooden building on public square of a village in Vermont. (692) Throwing dirt upon a public lot. (693) Stopping an ancient watercourse, whereby the water overflowed the adjoining highway, and damaged the same. (694) Diverting a watercourse running into a public pond or reservoir. (695) Obstructing a watercourse called “Peg's Run.” (696) Permitting waters of a mill to overflow. (697) Obstructing an ancient watercourse, whereby a public highway was overflowed and spoiled. (698) Erecting a dam on a navigable river. (699) Erecting obstructions on a navigable river. (700) Obstructing a river which is a public highway, by erecting a fish-trap or snare in it called "putts." (701) Damming creek. (702) Obstruction of fish in the River Susquehanna, under the act of 9th March, 1771. (703) Obstructing a harbor by erecting in it piles, &c. (704) Negligently permitting fences to remain, during the crop season, less than five feet high, under the North Carolina statute. [For non-repairing roads, see post, 781, &c.] UNWHOLESOME smells, &c. (705) General form for nuisance in carrying on unwholesome occupations near to habitations or public highways. (706) Carrying on the trade of a trunk-maker near to houses, so as to become a nuisance. (707) Erecting a soap manufactory near a highway and dwelling-house. (708) Nuisance by deleterious smoke and vapors. (709) Nuisance by rendering water unfit to drink. (710) Keeping gunpowder in a city. (711) Keeping hogs in a city. First count, placing hogs in a certain messuage, &c., and feeding them, so as to generate a stench, &c. Second count, keeping hogs near the dwelling-houses of divers citizens, &c., and near the public highways. (712) (713) Third count, after averring defendant to be the owner of a large building, &c., charges him with introducing into it great numbers of hogs, &c. (714) Boiling bullock's blood for making colors, near to public ways. (715) Keeping a distillery near public streets. (716) Exposing a child, infected with smallpox, in the public streets. (717) Against a parent for not giving his deceased child a Christian burial. (718) Bringing a horse infected with the glanders into a public place. (719) Against owner of land for erecting offensive buildings. (720) Keeping a privy in a street. (721) Keeping a privy near an adjoining house. DISORDERLY AND GAMING HOUSES. (722) Disorderly house, &c. Form used in New York. (723) Second count. Gaming houses, &c. (724) Disorderly house. Form in use in Massachusetts. (725) Keeping a common bawdy house in Massachusetts. (726) Against keeper of house of ill-fame. Rev. stat. Mass., ch. 130, s. 8, st. 1849, ch. 84. (727) Keeping brothel in Hamilton County, under Ohio stat. (728) Keeping disorderly tavern, under Ohio stat. (729) Disorderly house. Form used in Philadelphia. (730) Second count. Tippling house. (731) Another form for same. (732) Disorderly house, under Vermont Rev. stat., s. 9, c. 99. (733) Keeping a disorderly house, and fighting cocks, &c., at common law. (734) Disorderly house. Form used in South Carolina. (735) Letting house to woman of ill-fame, at common law. (736) Keeping a gaming house, at common law. (737) Second count. Gaming room. (738) Keeping a common gaming house, at common law. Another form, omitting the averment in last of playing rouge et noir. (739) Same, the game played being hazard. (740) Same, and permitting persons unknown to play at E. O. (741) Gaming house. Form in use in New York. (742) Against an inn-holder, in Massachusetts, for allowing nine-pins, &c., to be played on his premises. (743) Against same for keeping gaming cocks, under Rev. stat., c. 47, s. 9. (744) Against tavern-keeper for permitting unlawful gaming in Pennsylvania. (745) Against a person in same, for keeping a gambling device called sweatcloth. (746) Second count. Common gaming house. (747) Gambling under Pennsylvania act of 1847. First count, keeping a room for gambling. (748) (749) (750) Second count, exhibiting gambling apparatus. Third count, aiding persons unknown in keeping a gambling table. (751) Against a tavern-keeper for holding near his house a horse-race, under the Pennsylvania statute. (752) Masquerade, under Pennsylvania statute of 15th February, 1808. (753) Gaming with persons of color, under the South Carolina statute. (754) Gaming in Alabama. First count, playing at cards. (755) Keeping a gaming table in Alabama. PROFANATION OF LORD'S DAY. (756) At common law, for nuisance in an open profanation of the Lord's day, by keeping shop. (757) Keeping shop open, or trafficking on the Sabbath, on Charleston Neck. (758) Doing business on Sunday, against the Massachusetts statute. UNWHOLESOME MEAT, &c. (759) Selling unwholesome meat. Rev. sts. of Mass., ch. 171, § 11. (760) For adulterating bread for the purpose of sale. Rev. sts. of Mass., ch. 31, § 12. (761) Selling adulterated medicine. Mass. sts., 1853, ch. 394, § 1. (762) Selling a diseased cow in a public market. (763) Offering putrid meat for sale. (764) Another form for the same. SCANDALOUS EXHIBITIONS AND INDECENT Exposure. (765) Exhibiting scandalous and libellous effigies, and thereby collecting a crowd, &c. First count. (766) Keeping a house in which men and women exhibit themselves naked, &c., as "model artists." (767) Bathing publicly near public ways and habitations. (768) Public exposure of naked person. (769) Exposing the private parts in an indecent posture. (770) Same, under s. 8, c. 444. Vermont Rev. stats. First count, exposure to divers persons, &c. (771) (772) Second count. Exposure in the presence of one Polly P. Third count. Exposure in the presence of Polly P. and divers other persons to the jurors unknown. (773) Another form for the same in North Carolina, there being no allegation of the presence of lookers on. LEWDNESS AND DRUNKENNESS. (774) Lewdness and lascivious cohabitation in Massachusetts. First count, lascivious behavior by lying in bed openly with a woman. (775) Second count. Lascivious behavior, by putting the arms openly about a woman, &c. (776) Lascivious cohabitation at common law. (777) Lewdness, &c., by a man and woman unlawfully cohabiting and living together. (778) Notorious drunkenness. (781) Against inhabitants of a township for not repairing a highway situate within the township. (782) Against a county for suffering a public bridge to decay. (783) Against the inhabitants of a parish for not repairing a common highway. (784) Against a corporation of a town for suffering a watercourse which supplied the inhabitants with water, and which they were bound to cleanse, &c., to be filthy and unwholesome. (785) Information in New Hampshire against a town for refusing to repair, &c. (786) Against the inhabitants of a town for not repairing a highway, in Massachusetts. (787) Against a supervisor in Pennsylvania for refusing to repair road. (788) Against a supervisor in Pennsylvania for refusing to open a road, &c. (789) Against overseer in North Carolina for refusing to repair road. (790) Against commissioner in South Carolina for refusing to repair road. (791) Against overseer in Alabama for same. VIOLATIONS OF LICENSE LAWS. (792) Presuming to be a common seller of wine, under the Maine stat. (793) Selling liquors by retail in New Hampshire. (794) Dealing in liquor, &c., without license, under s. 1, c. 83. Rev. stat. (795) Selling liquor by the small, under same. (796) Selling liquor, &c., under Massachusetts Rev. stat., c. 47, § 1. (797) Another form under same section. (798) Under Rev. stat., c. 47, s. 2. Vermont (799) Another form under same. (800) Under Rev. stat., c. 47, s. 2. (801) Another form under same. (802) Another form under same. (803) Another form, under Rev. stats., c. 47, s. 2, where defendant is licensed to sell wine, &c. (804) Another form under same. (805) Another form under same. (806) Another form under same. (807) Selling liquor without license, under Massachusetts Revised statutes, c. 47, s. 3. (808) Another form under same. (809) Another form under same. (810) Violation of license laws in Rhode Island. (811) Same in New York. (812) Same in New Jersey. (813) Same in Pennsylvania. (814) Another form for same, being that used in Philadelphia. (815) Same in Virginia. (816) Same in North Carolina. (817) Same in Alabama. (818) Same in Kentucky. (819) Same in Tennessee. (820) Same in Mississippi. OFFENCES TO DEAD BODIES. (821) Digging up and taking away a dead body from a churchyard, at common law. (822) Removal of dead body under Massachusetts statute. (823) Disinterring dead body in New Hampshire. (824) Removing a body from its grave where there are near relatives, under Ohio statute. (825) Same in Indiana. (826) Selling the body of a capital convict for dissection, dissection being no part of the sentence. (827) Preventing the interment of a dead body by an arrest. OFFENCES AGAINST THE LOTTERY LAWS. (828) Selling lottery tickets. General frame of indictment. (829) Same where ticket is lost or destroyed, or in defendant's possession. (830) Selling ticket in New Hampshire. (831) Same in Massachusetts. (832) Advertising lottery ticket in same, under stat. 1825, c. 184. (833) Selling lottery tickets in same, under stat. 1825, c. 184, s. 1. (835) Another form for same. (836) Promoting lottery in same, being the form in common use. (837) Carrying on lottery whose description is unknown to jurors. (838) Selling lottery policy in Pennsylvania, under act of March 16, 1847. (839) Selling ticket in same, under same. (840) Same under repealed act of March 1, 1833. First count, sale of ticket, ticket being set forth. (841) Second count. Conspiracy to sell a lottery ticket, &c., the defendant being singly charged with a conspiracy with others unknown. (842) Same in Virginia. (843) Selling lottery tickets, under Ohio statute. (844) Opening up a lottery scheme, called "the Western Reserve Art Union," under Ohio statute. (845) Obstructing authorities, under Ohio statute. (846) Obstructing authorities and preventing a proclamation at a riot, under Ohio stat. (847) Riot and refusing to disperse on proclamation being made, under Ohio statute. (848) Publishing scheme of chance, under Ohio statute. (674) General frame of indictment. THAT A. B., late of, &c., on, &c., and on divers days and times between that day and the taking of this inquisition, (a) at, &c., near to the dwellinghouses of divers citizens of, &c., and also to divers public streets of said, &c., did, &c. (stating the particular offence), on, &c., and on the other days and times aforesaid, (aa) there, &c., by reason whereof (state the particular an noyance as in succeeding forms), to the great damage and common nuisance(b) (a) This averment, if unsupported by evidence, is surplusage. It is introduced, however, in all cases where the nuisance continues, and the object of it is to enable the court to give judgment of abatement; 13 East 164; 8 T. R. 142; 2 Stra. 686; 3 Chit. C. L. 608; see Wh. C. L. 548, 2384–5, 2440. (aa) See Wh. C. L. § 548, 2384-5, 2440. (b) The conclusion must always be "to the common nuisance." Thus an indictment for a nuisance, which ends "to the common nuisance of divers of the common not only of all the inhabitants of the said but of all other good citizens of the said commonwealth, thence (or if the nuisance be on a highway, say on wealth's citizens," is insufficient. It should be laid to the common nuisance "of all the citizens of the commonwealth, residing in the neighborhood," or "of all citizens, &c., residing, &c., and passing thereby;" Com. v. Faris, 5 Rand. 691. In Pennsylvania it is admissible to conclude to the common nuisance of the citizens of the Commonwealth of Pennsylvania; Graffins v. Com., 3 Penn. R. 502. On the same principle, an indictment for a nuisance in frequenting houses of ill fame, must charge that "the defendant, knowing the house to be a house of ill fame, did openly and notoriously haunt and frequent the same;" Brooks v. State, 2 Yerg. 482; see Wh. C. L. § 2362, &c. But an allegation in an indictment, that certain facts charged were "to the common nuisance of all the good citizens of the state," will not make it a good indictment for a common nuisance, unless these facts be of such a nature as may justify that conclusion as one of law as well as of fact; Com. v. Webb, 6 Rand. 726; State v. Baldwin, 1 Dev. & Bat. 195. Thus, where it was charged that the defendants assembled at a public place, and profanely and with a loud voice cursed, swore and quarrelled, in the hearing of divers persons then and there assembled, whereby a certain singingschool was broken up and disturbed, ad commune nocumentum, it was held that the indictment could not be sustained as one for a common nuisance; State v. Baldwin, 1 Dev. & Bat. 195. It is not enough in an indictment for a public nuisance in damming up and stagnating the waters of a creek, whereby the air is corrupted and infected, and sends forth noisome and unwholesome smells, to lay it to the common nuisance of "all the citizens of the commonwealth, not only residing and inhabiting there, but also going, returning, passing and repassing by the same," nor "to the common nuisance of all the citizens of the commonwealth;" but to maintain a public prosecution for a nuisance, it is necessary to allege and prove that the obstructions placed in the creek, produce a stagnation of the waters, and corrupt the air in or near a public highway, or in some other place in which the public have a special interest; Com. v. Webb, 6 Rand. 726. Before considering the precedents of indictments for nuisance in obstructing, encroaching on or annoying the public in using public highways, bridges, harbors, watercourses or navigable rivers, the general character of the offence will be examined. All permanent obstructions to the passage of the citizens of the state over public highways or bridges are nuisances for which an indictment will lie, and it will even be no defence that the highway was opened by an erroneous judgment of the county court; State v. Spainhour, 2 Dev. & Bat. 547. Thus, to place logs of timber upon them; to erect a gate across a road without immemorial usage to do so, even if it is kept open; and to suffer a way to be incommoded by trees hanging over it, are indictable offences; Hawk. b. 1, c. 75, s. 9; see Viner's Abridgment, tit Nuisance (C.); Wh. C. L. § 2370, &c. And though it has been holden that no indictment will lie for distributing lawful handbills on the footway in the street, to the inconvenience of the passengers; R. v. Sermon, 1 Burr. R. 516; yet it seems now to be well established that every unauthorized obstruction of a highway is a misdemeanor; R. v. Cross, 3 Campb. 227. Thus, a wagoner habitually keeping his wagon standing for hours to unload, R. v. Russell, 8 East R. 427; a constable collecting a crowd by a sale, Com. v. Milliman, 13 S. & R. 403; a coachmaster plying for passengers, and allowing his coach to remain in the street more than a reasonable length of time to take up and set down passengers, R. v. Cross, 3 Campb. 224; an auctioneer placing goods on the pavement intended by him for sale, Passmore's case, 1 S. & R. 217; or the owner of a house allowing it to remain under repair, and obstructing the public passage for a longer time than is necessary, R. v. Jones, 3 Campb. 330; will be respectively indictable for nuisances. So where the defendants, who were proprietors of a distillery in the City of Brooklyn, were in the habit of delivering grains remaining after distillation, called slops, by passing them through pipes to the public street opposite their distillery, where they were received into casks standing in carts and wagons; and the teams and carriages of the purchasers were accustomed to collect there in great number to receive and take away the article; and in consequence of their remaining there to take their turns, and of the strife among the drivers for priority, and of their disorderly conduct, the street was obstructed and rendered inconvenient to those passing thereon; it was held that the defendants were guilty of nuisance; People v. Cunningham, 1 Denio 524. Nuisances resulting from the several acts of distinct parties, e. g. occupiers of land raising fenders along a line of navigation, may be made the subject of a joint indictment against all of them; R. v. Trafford and others, 1 B. & Ad. 874; but the ill consequences of erecting piles in a harbor, if slight, uncertain and rare, are not indictable; R. v. Tindall and others, 6 A. & E. 143; 1 N. & P. 719; Wh. C. L. § 2370 and 2402. To divert a part of a public stream, whereby the current of it is weakened, and ren |