Commonwealth v. Perry

• Decision Date: 25 March 1885
• Citation: 139 Mass. 198,29 N.E. 656
• Parties: Commonwealth v. Oliver H. Perry[1]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

139 Mass. 198

29 N.E. 656

Commonwealth v. Oliver H. Perry^[1]

Supreme Judicial Court of Massachusetts

March 25, 1885

Argued February 24, 1885

Defendant Oliver H. Perry, was indicted and convicted for maintaining a public nuisance. The indictment charged that, at certain dates, defendant, "near the dwelling-houses of divers good citizens of the said commonwealth, and also near divers public streets and common highways there situate, then and there did keep and maintain and yet doth keep and maintain, a large number of swine to-wit, five hundred; by reason whereof divers large quantities of noisome, noxious, and unwholesome smokes, smells, and stenches, on the days and times aforesaid, then and there were emitted, sent forth, and issued, and the air thereabouts, on the days and times aforesaid, was greatly filled and impregnated with many noisome, offensive, and unwholesome smells, stinks, and stenches, and has been corrupted and rendered very insalubrious, to the great damage and common nuisance of all the citizens of said commonwealth there being, inhabiting, and dwelling, passing and repassing, to the evil example of all others in like case offending against the peace of the said commonwealth, and contrary to the form of the statute in such case made and provided." Defendant offered to show that it was the custom throughout the state to locate and carry on piggeries in more populous neighborhoods than the one in which his was located, and that they were tolerated by custom and usage. Defendant requested the following instruction, which was refused: "Evidence of the natural odors which come from the bodies of domestic animals, however annoying to certain persons, will not sustain an indictment for a nuisance. The keeping of swine to the number of five hundred near dwelling-houses and streets of a town is not per se a nuisance." The judge charged as follows: "The natural odor of one animal might not be a nuisance; but the natural odor of five hundred might be. It is for the jury to say whether it was so in this case. Five hundred swine kept in the vicinity of roads and dwelling-houses might become a nuisance, where one would not. People residing in the neighborhood of this piggery have a right to have the air free and uncontaminated by odors, smells, and stenches offensive to the senses. It is not necessary for the government to show that the contamination of the atmosphere is to such an extent as to cause actual injury to health, but it will be sufficient for it to show that the smells and stenches are so offensive as to render the residences and habitations in the vicinity uncomfortable. The keeping of swine to the number of five hundred near dwelling-houses and streets of a town will become a nuisance, if smells and stenches actually emitted from such keeping are such as to render such dwelling-houses uncomfortable for residents, or to render the passing in said streets uncomfortable." Defendant excepts. Exceptions overruled.

Norfolk.

Indictment charging that the defendant, on June 1, 1884, and on divers other days and times between that day and December 2, 1884, at Needham, "near the dwelling-houses of divers good citizens of the said Commonwealth, and also near divers public streets and common highways there situate, then and there did keep and maintain, and yet doth keep and maintain a large number of swine, to wit, five hundred; by reason whereof divers large quantities of noisome, noxious, and unwholesome smokes, smells, and stenches, on the days and times aforesaid, then and there were emitted, sent forth, and issued, and the air thereabouts on the days and times aforesaid was greatly filled and impregnated with many noisome, offensive, and unwholesome smells, stinks, and stenches, and has been corrupted and rendered very insalubrious, to the great damage and common nuisance of all the citizens of said Commonwealth there being, inhabiting, and dwelling, passing and repassing, to the evil example of all others in like case offending against the peace of the said Commonwealth, and contrary to the form of the statute in such case made and provided."

In the Superior Court, before the jury were empaneled, the defendant moved to quash the indictment, for the following reasons: "1. The indictment sets forth no crime or offence known to the law. 2. No offence or crime is fully, plainly, substantially, and formally set forth therein. 3. It is not therein alleged that the neighborhood in which said alleged nuisance is located is a populous neighborhood." This motion was overruled; and the defendant excepted.

The defendant was then tried before Bacon, J., who allowed a bill of exceptions, in substance as follows:

The government introduced evidence tending to show that the defendant, between the dates mentioned in the indictment kept and maintained, in the town of Needham, on his premises, consisting of about twenty-five acres of farming land, swine to the number mentioned in the indictment; that on said...