quitting all VII. VERDICT. § 1407. Two or more defendants must be joined to constitute Verdict ac- the offence; and if only two are joined, an acquittal of but one de- one is an acquittal of the other, unless there be allegafendant is a tion and proof of co-defendants unknown. A husband general acquittal. and wife cannot be joined as the sole conspirators.1 1 Supra, §§ 1337-9, 1392-3; Wh. Cr. Pl. & Pr. 305. Where a count in an indictment charged several defendants with conspiring together to do several illegal acts, and the jury found one of them guilty of conspiring with some of the defendants to do one of the acts, and guilty of conspiring with others of the defendants to do another of the acts, such finding was held bad, as amounting to a finding that one defendant was guilty of two conspiracies, though the count charged only one. O'Connell v. R. 11 Cl. & F. 155. Upon a count in an indictment against eight defendants charging one conspiracy to effect certain objects, a finding that three of the defendants are guilty generally, that five of them are guilty of conspiring to effect some, and not guilty as to the residue, of these objects, is bad in law and repugnant; inasmuch as the finding that the three were guilty was a finding that they were guilty of conspiring with the other five to effect all the objects of the conspiracy, whereas by the same finding it appears that the other five were guilty of conspiring to effect only some of the objects. Ibid. In a case already noticed (supra, § 1393), A. was indicted for conspiring with Y. and Z., and other persons to the jurors unknown. The evidence was confined to A., Y., and Z., and the jury was of opinion that A. conspired with either Y. or Z., but said that they did not know with which. Y. and Z. were thereupon both acquitted. It was held, that A. was entitled to be acquitted also. R. v. Thompson, 16 Q. B. 832; 5 Cox C. C. 166; R. v. Denton, Dears. C. C. 3. As has been already seen, where one defendant in conspiracy dies between the indictment and trial, it is no ground of a venire de novo for a mistrial, if the trial proceeds against both, no suggestion of the death being entered on the record. R. v. Kenrick, 5 Q. B. 49; D. & M. 208; 7 Jur. 848; 12 L. J. M. C. 135. One of several prisoners indicted for conspiracy may be tried separately, and upon conviction, judgment may be passed on him, although the others, who have appeared and pleaded, have not been tried. R. v. Ahearne, 6 Cox C. C. 6. It has been held that where three prisoners have been jointly indicted for a conspiracy to murder, and severally pleaded not guilty, but have severed in their challenges, and the Crown has, consequently, proceeded to try one of such prisoners; that, upon conviction of such prisoner, judgment must follow, although the others have not been tried; and that the possibility of the other prisoners being found not guilty (although such a verdict would be a ground for reversing the judgment) is not ground by itself for reversal. Ibid. Nuisance must be an offence dele- Not enough if offence is special, Not necessary that nuisance should be detrimental to health, § 1412. Prescription no defence, § 1415. No defence that similar nuisances No defence that thing complained of has no other place, § 1418. Prior conviction no defence, § 1419. V. OFFENCES TO RELIGION. 1431. Unnecessary labor on Sunday a VI. OFFENCES TO PUBLIC DECENCY. VII. OFFENCES TO HEALTH. Whatever is likely to generate disease may be a nuisance, § 1433. As in case of exposure of putrid or infectious food or drink, § 1434. But mere unwholesomeness is not sufficient, § 1435. And so as to communication of diseases, § 1436. Want of evil intent is no defence, VIII. OFFENSIVE INDUSTRIES. § 1420. Nor is good intent, § 1421. All concerned are principals, § 1422. liable for neglect, § 1423. A license from government no ex- Nuisance must be in causal relation with defendant's act, § 1425. Jurisdiction. See supra, § 288. II. ABATEMENT FOR. Nuisance may be stopped by abate- III. INDICTMENT. Indictment must conclude to com- Must show a public offence, § 1428. IV. PROOF. Nuisance to be proved inferentially, Nuisances when in populous places, § 1438, and so in city limits, § 1439. Whether such industry must recede, in other cases, is a question of expediency, § 1440. IX. EXPLOSIVE COMPOUNDS. Must be carefully kept, § 1441. MENT. Common scolds are indictable at common law, § 1442. And so of common brawlers, § 1443. And so of common barrators. Common thieves, § 1444. And so of eavesdroppers, § 1445. And so of persons habitually and openly lewd, § 1446. And so of common drunkards, § 1447. And so of false newsmongers, § 1448. XI. BAWDY, DISORDERLY, AND TIP- XIII. EXPOSURE OF PERSON. Nuisance must be an offence to commu nity at I. GENERAL CONDITIONS. § 1410. A common nuisance is a condition of things resulting either from an omission to discharge a duty, or from an act unauthorized by law, which condition is prejudicial deleterious to the health, comfort, safety, or property of citizens at large, or interferes with their right to pass to and fro large. on roads common to the public. Whoever, by omitting a duty, or by an act unauthorized by law, produces such a condition of things, is indictable for misdemeanor. It is not necessary that all members of the community should be affected by the nuisance. It is enough if the liberty of all members of the com munity be abridged by their being precluded from approaching without risk the thing complained of.1 In other words, it is no defence that I might avoid being offended by a nuisance, if my liberty would be abridged by my having to avoid it. offence is § 1411. The offence must not be confined to individuals, but must have within its range the community or vicinage Not as a class. Hence it is not a nuisance to dig and enough if forcibly keep up, within a neighbor's enclosure, a pit special. which exposes him to danger as he goes to and fro on his own soil. It is a nuisance, however, to dig a pit in front of that neighbor's house, in the public road, so as to imperil all persons passing and repassing. So for a man to make a noise on a particular occasion before a limited audience is not indictable; but it is otherwise if he make loud noises continuously and habitually to the disturbance of the citizens at large. The offence must be in a populous neighborhood, or in a place sufficiently contiguous to a public highway, to affect persons passing and repassing.3 In other words, a nuisance, to be indictable, must have within its 1 See Com. v. Webb, 6 Rand. (Va.) 726; Brooks v. State, 2 Yerg. 482; State v. Baldwin, 1 Dev. & Bat. 195. The definition in the English Draft Code of 1879, s. 150 is as follows: "A common nuisance is an unlawful act or omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all her majesty's subjects. "Every one shall be guilty of an indictable offence, and shall be liable upon conviction thereof to one year's imprisonment, who commits any common nuisance which endangers the lives, safety, or health of the public, or which injures the person of any individual. "Any one convicted upon any indictment or information for any common nuisance other than those mentioned in the preceding section shall not be deemed to have committed a criminal offence; but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right. "Every one shall be guilty of an indictable offence, and shall upon conviction thereof be liable to one year's imprisonment with hard labor, who knowingly and wilfully exposes, or causes to be exposed, for sale, or has in his possession, with intent to sell for human food, articles which he knows to be unfit for human food. (See infra, § 1434.) Every one who is convicted of this offence, after a previous conviction for the same offence, shall be liable to two years' imprisonment with hard labor." 2 Com. v. Smith, 6 Cush. 80. Infra, § 1449. 3 R. v. Pappineau, 2 Str. 686; R. v. White, 1 Burr. 333; Com. v. Webb, 6 Rand. (Va.) 726. range either the community generally, or those persons passing and repassing on a public road, or chancing to be on public resorts.1 sary that nuisance be detrimental to health. § 1412. It is not necessary to prove that the nuisance is one Not neces- that is positively deleterious to health. It is enough if it offends the senses, or disturbs the comfort of the community, or, as will be seen, shocks public morality.3 Hence a large pig-sty or swine-yard, in a populous neighborhood, is a nuisance, and indictable as such; but it is otherwise with horses in stables, which are essential to city life, and as to which a particular neighbor cannot complain, though one of the horses may "kick violently and noisily," and the stench of the manure be offensive to the immediate neighbors.5 Tanneries, petroleum refineries, and dams on the owner's pri 1 Ibid.; Com. v. Smith, 6 Cush. 80; Com. v. Oaks, 113 Mass. 8; State v. Wright, 6 Jones (N. C.), 25; People v. Jackson, 7 Mich. 432; State v. Schlottman, 52 Mo. 164, and infra, §§ 1472-3. 2 R. v. Neil, 2 C. & P. 485; R. v. White, 1 Burr. 333; Stoughton v. Baker, 4 Mass. 522; Com. v. Brown, 13 Met. 365; People v. Cunningham, 1 Denio, 524; Lansing v. Smith, 8 Cow. 146; State v. Wetherall, 5 Harring. 487; Ashbrook v. Com. 1 Bush, 139; Hackney v. State, 8 Ind. 494; State v. Rankin, 3 So. Car. 438. 8 See infra, §§ 1432, 1458. 4 R. v. Wigg, 2 Salk. 460; Com. v. Vansickle, Brightly, 69; 4 Cr. Rec. 26. Infra, § 1437. In State v. Kaster, 35 Iowa, 221, the indictment charged that the defendant "unlawfully and injuriously did erect, continue, and use a certain enclosure or pen in which cattle and hogs were confined, fed, and watered, and the excrement, decayed food, slop, and other filth were retained,” whereby were occasioned "noxious exhalations and offensive smells greatly corrupting and infecting the air; and other annoyances dangerous to the health, comfort, and property of the good people residing in that immediate neighborhood," &c. The prosecution offered evidence that the noise made by hogs in said pens was very great and annoying at night to persons residing in that neighborhood. It was ruled by the Supreme Court that while the evidence offered was not admissible under the general charge of "other annoyances," it was admissible as constituting a part of the facts connected with the nuisance charged, and also as corroborative of the fact that hogs were kept in the pen at night. It was further held, in conformity with the law hereafter expressed (infra, § 1416), that in a prosecution for nuisance, the defendant will not be permitted to show in justification that the public benefit resulting from his acts is equal to the public inconvenience. 5 Lawrason v. Paul, 11 Up. Can. Q. B. 537. 6 State v. Trenton, 36 N. J. L. 283. 7 Com. v. Kidder, 107 Mass. 188. |