State v. Wolfe

• Citation: 17 S.E. 528,112 N.C. 889
• Parties: STATE v. WOLFE.
• Decision Date: 02 May 1893
• Court: North Carolina Supreme Court

17 S.E. 528

112 N.C. 889

STATE v. WOLFE.

Supreme Court of North Carolina

May 2, 1893

Appeal from criminal court, Buncombe county; Carter, Judge.

James Wolfe was convicted of creating a common nuisance by causing unwholesome odors at a slaughter pen. He appeals. Reversed.

Indictment for creating a common nuisance by causing unwholesome odors at a slaughter pen, tried at April term, 1892, of Buncombe criminal court, before Carter, Judge. The charge in the indictment concluded "to the great damage and common nuisance of all good citizens of the state going, returning and passing through and along the said common road and public highway, and being and residing near thereto." The testimony was as follows: E. W. Britt testified for the state that the defendant's slaughter pen had been built for three years on defendant's own land, and was owned and controlled by the defendant; that it was 275 feet from his house, and 380 feet from the road; that the road has been continually used for more than 25 years; that he smelt the odor, which was very bad. On this road several times. Upon cross-examination the witness stated that the road had not been changed at this place since he had known it, 20 years ago, and he could see signs of the old road there; but it might have been changed at this point inside of 20 years, and that "we have had to work the road ever since I have been there, four or five years." This witness, after objection by defendant, was further permitted to testify that the condition of the slaughter pen last summer was such as to be very offensive at his house. The defendant excepted, upon the ground that the slaughter pen might constitute a nuisance at witness' house, and not constitute a nuisance on the road, and therefore the statement of the witness was not material. The court admitted this testimony only as a circumstance which the jury might consider in determining whether or not the odor from the pen could be smelt at the road, and be offensive there, and the court instructed the jury to consider it only for that purpose. J. W. Queen testified for the state, after objection by defendant, that Britt (the former witness) had said to him last summer that he could not live there if something was not done about the pen. Defendant excepted, upon the ground that the statement was made after the controversy between Britt and the defendant arose, about the condition of the pen. Dr. J. H Williams (admitted to be an expert) was permitted to testify for the state, after objection by defendant, that he noticed the smell from the slaughter pen last summer at britt's house, and that it was very offensive there, and that it was of decayed offal and dead animals. Defendant excepted, upon the ground that the condition at Britt's house was no proof of a nuisance on a public road elsewhere. This testimony was admitted only for the same purpose as witness Britt's, on the same point. This witness was further permitted, after objection by defendant, to testify that he told Britt that the smell was so offensive it would make his family sick. Defendant excepted, for that the testimony was not material. He was further permitted to testify, after objection by defendant, that, in his opinion, the odor was unwholesome at Britt's house, and would produce disease. Defendant excepted, for the reason that this was not testimony to show a nuisance on a public road elsewhere. The testimony was admitted for the purpose mentioned above as to similar testimony of other witnesses. W. O. Burnett was permitted to testify for the state, after objection by defendant, that about a year ago Britt said to him that the odor was so offensive from the slaughter pen that he could not live at his house, 275 feet away. The testimony was admitted only to corroborate Britt. The defendant excepted upon the ground that the statement was made after the controversy arose about the condition of the pen. The defendant excepted to the charge of the court, for that the court instructed the jury that if the defendant allowed his slaughter pen to be and remain in such condition that the stench arising therefrom seriously annoyed the public traveling said high way he would be guilty; that it was not necessary for the public to be actually present on said highway; but that, if such of the public as did travel said highway were seriously annoyed and inconvenienced by said odors, the defendant would be guilty. No question was made...