Manufacture R. 4410. manufacture, which by occasioning noxious exhalations, offensive smells, or other annoyances, becomes injurious and dangerous to the health, comfort, or property of individuals or the public, the causing or suffering any offa!, filth, or noisome substance to be collected or to remain in any place to the prejudice of others; the obstructing or impeding without legal authority the passage of any navigable river, harbor, or collection of water; or the corrupting or render.ng unwholesome or impure the water of any river, stream, or pond; or unlawfully diverting the same from its natural course or state to the injury or prejudice of others; and the obstructing or encumbering by fences, buildings or otherw se, the public highways, private ways, streets, alleys, commons, landing places, or burying grounds, are nuisances. While each of the acts enumerated | become corrupt and to overflow, thus is declared to be a nuisance, it is not rendering the adjoining land mars.y, declared in express terms which of etc., whereby the air should become them, or whether any of them, is a corrup ed and infected, etc: Ibid. common nuisance under § 4092. They are public or private, as they tend to the public injury or only to the injury of private individuals: The State v. Close, 35-570. A party obstruc ing a highway by a fence or otherwise, may be punished under this section, although the road supervisor might, under § 993, have a right to remove the obstruction: Te State v. Berry, 12-58. The punishment for the acts here described as nuisances, is prescribed by $ 4092: The State v. Kuster, 35 The close proximity of such a nui- SEC. 4090. If any person carry on the business of manufacturing gunpowder, or of mixing or grinding the composition therefor, of gunpowder. in any building w.thin eighty rods of any valuable building erected at the time when such business may be commenced, the building in which such business is thus carried on is a public nuisance, and such person is liable to be prosecuted accordingly. SEC. 4091. Houses of ill-fame kept for the purpose of pros.itution and lewdness, gamb ing houses, or houses where drunkenness, quarreling, fighting, or breaches of the peace are carried o or permitted, to the disturbance of others, are nuisances, and may be abated and punished as provided in this chapter. Houses of ill- C. 51, & 2761. Where defendant, at a farm hous^, kept and sold wine which was not drank upon the premises by those buying it, but upon the highway a half mile or more from the hose, resulting in riotous conduct, etc., held, that he was not guilty of an offense under this section: The State v. Dieffenbach, 47-638. Failure to use the words "to the disturbance of others" in charging the keeping of a house where drunkenness, etc., are carried on, renders the indictment bad, but does no: make it an indictment for an offense A boat may be within the meanunder § 4026: The State v. Dean, 44-ing of the term "house of ill-fame" 648 as here used: The State v. Mullen, 35-199. Although the quarreling, fighting, etc., occur On the sidewalk in An indictment charging all these front of, and not in, the house of de- offenses as constituting a nuisance, fendant, yet if it is the character of does not charge more than one ofthe house which attracts the disor-fense: The State v. Spurbeck, 44–667. SEC. 4092. Whoever is convicted of erecting, causing, or con and abatement tinuing a public or common nuisance as described in this chapter, Punishment or at common law when the same has not been modified or repealed an by statute, where no other punishment therefor is specially pro- R. 24412. vided, shall be punished by a fine not exceeding one thousand dollars, and the court, with or without such fine, may order such nuisance to be abated, and issue a warrant as hereinafter provided, The punishment here provided for the crime of nuisance is also to be ap plied to a person found guilty of that offense under § 1543 (keeping a building, etc., where intoxicating liquors are sold contrary to law): The State r. McGr w, 11-112; The State v. Collins, 11-141; The State v. Schilling, 14-455; The State v. Little, 42-51, 54; The State v. Dean, 44–648. the acts prohibited in § 1543 and 40 1, is not bad for duplicity. Such acts committed at one time constitute but one nuisance, and defendant cannot be convicted of separate nuisances for acts committed under those two sections at the same time: The State v. Dean, 44–648. The court may order a defendant fined under this section, to be impris oned until the fine is paid, in accordance with the provisions of § 4509, or imprisoned at hard labor under § 4736: The State v. Jordan, 39-387; The State v. Anwerda, 40–151. C. '51, 2762. The nuisance may be single, though all the various acts constituting it under the last section are charged: The State v. Spurbeck, 44-667; and so an indictment charging the doing of SEC. 4093. When upon indictment, complaint, or action, any Process. person is adjudged guilty of a nuisance, the court before whom R. 24113. such conviction is had, may, in addition to the fine imposed, if any, or to the judgment for damages or costs for which a separate execution may issue, order that such nuisance be abated or removed at the expense of the defendant, and after inquiry into and estimating as nearly as may be the sum necessary to defray the expenses of such abatement, the court may issue a warrant therefor. Where the nuisance to be abated | an offender and punish an offense was a boat on the Mississippi river, committed thereon, it also had power anchored east of the middle of the to order such boat seized and sold in channel, held, that as the lowa court case it was found to be a nuisance: had jurisdiction, under § 3, to arrest The State v. Mullen, 35–199. C. '51, 2763. SEC. 4094. When the conviction is had upon an action before Warrant. a justice of the peace and no appeal is taken, the justice, after R.4414, estimating as aforesaid the sum necessary to defray the expenses of removing or abating the nuisance, may issue a like warrant. C. '51, 2 2764. SEC. 4095. Instead of issuing such warrant, the court or justice Execution of may order the same to be stayed upon motion of the defendant, stayed. R. 4415. and upon his entering into an undertaking in such sum and with C. 51, 2765. such surety as the court or justice may direct, to the state, conditioned either that the defendant will discontinue said nuisance, or that within a time limited by the court and not exceeding six months, he will cause the same to be abated and removed as either is directed by the court; and upon his default to perform the condition of his undertaking, the same shall be forfeited and the court in term time or vacation, or justice of the peace, as the case may be, upon being satisfied of such default, may order such warrant forthwith to issue, and a scire facias on such undertaking. SEC. 4096. The expense of abating a nuisance by virtue of a Expenses. warrant can be collected by the officer in the same manner as R.4416, damages and costs are collected on execution, except that the materials of any buildings, fences, or other things, that may be C. '51, ¿ 2766. removed as a nuisance, may be first levied upon and sold by the officer, and if any of the proceeds remain after satisfying the expense of the removal, such balance must be paid by the officer to the defendant or to the owner of the property levied upon, and if said proceeds are not sufficient to pay such expenses, the officer must collect the residue thereof. CHAPTER 15. Definition. R. 4417. C. '51, 2767. Punishment. 4418. R. C. '51, 2768. evidence. OF LIBEL. SECTION 4097. A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation, or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation made public as aforesaid, designed blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives or friends. to SEC. 4098. Every person who makes, composes, dictates, or procures the same to be done; or who wilfully publishes or circulates such libel; or in any way knowingly or wilfully aids or assists in making, publishing, or circulating the same, shall be punished by imprisonment in the county jail not more than one year, or by fine not exceeding one thousand dollars. SEC. 4099. In all prosecutions or indictments for libel, the Truth given in truth thereof may be given in evidence to the jury, and if it appear to them that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the defendant shall be acquitted. R. 4419. C. '51, 2769. Publication. દુ R. 24420. C. '51, & 2770. Definition of. C. '51, 2771. R. 2 4422. C. '51, 2772. See Cons. Art. 1, § 7. SEC. 4100. No printing, writing, or other thing is a libel unless there has been a publication thereof. SEC. 4101. The delivering, selling, reading, or otherwise communicating a libel; or causing the same to be delivered, sold, read, or otherwise communicated to one or more persons or to the party libeled, is a publication thereof. SEC. 4102. In all indictments or prosecutions for libel, the Law and fact. jury, after having received the direction of the court, shall have the right to determine at their discretion the law and the fact. The "direction of the court" for damages: Forshee v. Abrams, 2– means instructions by the court. This section applies only in criminal prosecutions for libel, not in actions 571. Similar provision, sce § 4438. SEC. 4104. A felony is a public offense which is, or in the dis- Felony. cretion of the court may be, punished by imprisonment in the C. 51.72817. penitentiary. Misdemeanor. able. SEC. 4105. Every other public offense is a misdemeanor. SEC. 4106. No person can be punished for a public offense ex- c. 31, 28.8. cept upon legal conviction in a court having jurisdiction thereof. How punishSEC. 4107. All defendants are bailable both before and after R.4431. conviction, by sufficient surety, except for offenses heretofore C. '51, 2819. ishable with death under the laws of the state, where the proof is All offenses evident, or the presumption great. [Seventeenth General Assembly, Chapter 103.] pun bailable ex cept. SEC. 1. No defendant convicted of murder shall be admitted Defendant conto bail. victed of ur der. CHAPTER 2. OF THE TERM MAGISTRATE, AND HIS POWERS, PEACE OFFICERS AND trates: du C. '51, 2823, SECTION 4108. Any judge of the supreme, district, or circuit who are magiscourts, any judge of any city court, any justice of the peace, any trate mayor of any incorporated city or town, any police, or other spe- R. 23 4439, 4447. cial justice of such city, or town, shall have power to hear com- 2778. plaints and preliminary informations, to issue warrants, order arrests, require security to keep the peace, make commitments, and take bail in the manner directed by this code. They are designated under the general term magistrate, and may exercise the jurisdiction hereby conferred on them as follows: 1. Judges of the supreme, district, and circuit courts through officers. out the state, in any county in which they may be at the time of complaint made; 2. Judges of city courts, justices of the peace, mayors of incorporated cities and towns, and police and other special justices of such cities and towns, within their respective counties. SEC. 4109. The following persons respectively are designated Who are peace in this code under the general term, peace officer: 1. Sheriffs and their deputies; R. 4440. C. '51, 2830. Same. Infirmation C. '51,2822. 2. Constables; 3. Marshals and policemen of incorporated cities and towns. A special constable appointed by a not a peace officer: Foster v. Clinjustice of the peace, under § 3630, is ton Co., 51-541. SEC. 4110. Magistrates and peace officers are sometimes designated by the term, officers of justice. SEC. 4111. Complaint of preliminary information is a statement in writing, under oath or affirmation made before a magistrate, of the commission, or threatened commission, of a public offense and accusing some one thereof. CHAPTER 3. OF THE PREVENTION OF PUBLIC OFFENSES BY THE RESISTANCE SECTION 4112. Lawful resistance to the commission of a public offense may be made by the party about to be injured; or by others. SEC. 4113. Resistance sufficient to prevent the offense may be made by the party about to be injured: 1. To prevent an offense against his person; 2. To prevent an illegal attempt by force to take or injure property in his lawful possession. The nature of the resistance must. | defense, when it appears that he is in however, have regard to the nature imminent peril of death or great bodof the offense to be committed. Theily harm (see The State v. Thompson, common law rule that the party is 9-188), is not changed by this section: only justified in using a deadly The State v. Kennely, 20–569. weapon in a deadly manner, in self SEC. 4114. Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense. |
