Hackney v. State

Decision Date23 January 1857
PartiesHackney v. The State
CourtIndiana Supreme Court

From the Johnson Court of Common Pleas.

The judgment is affirmed with costs.

F. M Finch, for appellant.

Counsel for the appellant cited 3 Black. Com. (Wend. ed.) 122, 216, 4 id. 167; 5 Bac. Abr. 147, 152; 2 C. & P. 483.

D. C Chipman, for the State.


Stuart J.

Information against Hackney for maintaining a public nuisance. The nuisance consisted in keeping a ten-pin alley, and procuring for gain certain disorderly persons to meet there, rolling balls night and day, cursing, quarreling, drinking, and making great noises, etc., to the injury and common nuisance of a part of the citizens of the State, etc.

Without interposing any motion to quash, the defendant pleaded not guilty. Trial by jury; verdict and judgment for the State; and motion for a new trial overruled.

Certain instructions were asked by the defendant which the Court refused to give. The tenor of these 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, anything 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. People v. Cunningham, 1 Denio 523; 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 State v. Bertheol, 6 Blackf. 574, and Bloomhuff v. 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 prescribes 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."

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. State, 4 Ind. 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...

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