State v. Uvalde Asphalt Pav. Co.

• Decision Date: 10 November 1902
• Parties: STATE v. UVALDE ASPHALT PAV. CO. STATE v. MARSTON et al.
• Court: New Jersey Supreme Court

53 A. 299

68 N.J.L. 512

STATE

v. UVALDE ASPHALT PAV. CO.

STATE

v. MARSTON et al.

Supreme Court of New Jersey.

Nov. 10, 1902.

(Syllabus by the Court.)

Certiorari to court of quarter sessions, Hudson county.

The Uvalde Asphalt Paving Company and John S. Marston and others were separately indicted as nuisances, and bring certiorari to remove a motion to quash the indictment. Indictments sustained.

Argued June term, 1902, before DIXON, PITNEY, and HENDRICKSON, JJ.

Corbin & Corbin, for prosecutors.

James S. Erwin, for the State.

HENDRICKSON, J. This is a motion to quash an indictment removed from the Hudson quarter sessions by certiorari. The indictment charges the defendant, a corporation, with causing and maintaining a nuisance at Jersey City, in the county of Hudson, in this state, on divers days and times between April 1, 1901, and the time of taking the Inquisition. It alleges that the nuisance arises from the business of the defendant, which is the manufacture and refining of asphalt; that in the process of manufacture the defendant boils, melts, and mixes in certain cauldrons, boilers, and other vessels large quantities of asphaltlc cement, carbonate of lime, residuum oil of petroleum, and other materials from which arise noisome, noxious, and unwholesome smokes, vapors, smells, and stenches, which impregnate the air, rendering it corrupt, offensive, and unwholesome, to the common nuisance, etc. The indictment consists of five counts, varying somewhat in form, but charging substantially the same offense.

No criticism is made upon the language in which the pleader has embodied the nature and character of the particular nuisance charged. It is claimed, however, that the several counts of the indictment are fatally defective in failing (1) to show that the alleged nuisance was committed in a public place; (2) to state definitely where the nuisance was committed; (3) to show particularly what citizens or persons were damaged. In reviewing these reasons on which the motion to quash is based, I will take them up in the order named, and consider the second, third, fourth, and fifth counts together. In the second count the place of manufacture is described as "in, upon, and about a certain large building, and other structures, messuages, and tenements, and the appurtenances thereto, in the said city of Jersey City, operated, managed, and controlled by the said" defendant there situate, and near divers public streets and highways known as Green street and Essex street, in said city of Jersey City, and also near the dwelling houses of divers good citizens of this state, then and there inhabited, etc. Then follows the charge of erecting and maintaining the cauldrons, boilers, and other vessels, and the using of them in the manufacturing processes above described, in said building at Jersey City aforesaid, and then the indictment proceeds: By reason of which said premises divers noisome smells, etc., "on the days and times aforesaid, were thence emitted and issued, so that the air," etc., at the city of Jersey City aforesaid, was rendered and became corrupt, etc., to the common nuisance of all the good citizens of this state there inhabiting and residing, and in, through, and along the said public streets and highways, going, returning, passing, and repassing, etc.

We think the language here abstracted does show that the nuisance was committed in a public place. The argument of the prosecutor is that while this count alleges that the furnaces, boilers, etc., were erected near divers public streets, naming them, and near dwelling houses, yet that when it says that noisome smokes, etc., were thence emitted, nothing is said as to place, and that when it says that the air at the city of Jersey City was corrupted, etc., it fails to allege that the nuisance was committed in a public place. We find ourselves unable to concur in this view. We think the word "thence" clearly connects the language as to emitting the noisome smells, etc., with the furnaces, boilers, etc., and that the fair meaning of the language of the count is that the air in and along the public streets and highways named became corrupted, offensive, etc.

In considering the contention secondly made, that the counts do not state definitely where the nuisance was committed, we should have regard to the fact that in criminal pleading the setting out of the exact place where the offense was committed, except where it was local in character, such as arson, burglary, etc., is unnecessary. So that the offense is alleged to have been committed within the county over which the court has jurisdiction, it has been held from a very early period to be sufficient. Whart. Cr. PI. (9th Ed.) 139. But even in local offenses such as I have named, where the building involved is an essential element of the crime, it is only necessary to aver that the building in which the crime was committed is a dwelling house of a certain person, be he owner or occupant, there situate; that is, situate within the venue laid in the indictment. Now, the offense of nuisance arising from the carrying on of an offensive trade is not local in the sense here stated. Neither the location of the buildings nor the buildings themselves, with the furnaces and cauldrons therein contained, are essentia] ingredients of the offense charged. They are only matters of inducement, and may be stated in general terms, and without the certainty required in stating the gist of the offense. Whart. Cr. PI. 151, 165.

It is, however, necessary in this as in other criminal offenses that the indictment should set forth the essential ingredients of the offense with reasonable certainty. It is essential that it should appear to be a public...