Clayton v. State

Irving, J., delivered the opinion of the Court. The appellant was indicted in the Circuit Court for Baltimore County, for maintaining a nuisance near to the public streets and highways of the county. The indictment charges that “ on the first day of March, in the year of our Lord, eighteen hundred and eighty-one, and on divers other days and dates between that date and the day of the taking this inquisition, with force and arms ■at Baltimore County, in the near neighborhood of Irvin’s ²⁷³ public streets and highways in said county, where divers good citizens of said State are constantly passing and re-passing, and of divers dwelling-houses in said county, inhabited and occupied by divers other good citizens aforesaid, certain furnaces and boilers, for the purpose of grinding and boiling bones and tripe and other entrails, and offal of beasts, before that time made, erected and set up, unlawfully and injuriously did continue, and doth continue to use,” &e. &c., detailing the offensive character of the effluvia emitted therefrom. At the trial the State proved, that the appellant was the proprietor of a bone factory, situated in Baltimore County, about three hundred yards from a county road, where bones and offal were boiled, and from which offensive odors were sent forth.

A competent witness having been called by the State and testified, that he lived in the neighborhood of the defendant’s bone factory, and had frequently visited it and passed near it, was asked by the State’s Attorney, to state all that he had seen or noticed of the defendant’s factory, or smells issuing from it at any time or times during a period of twelve months, prior to the 16th day of June, 1881.” To this question the defendant’s counsel objected; but the Court overruled the objection, and permitted the witness to testify of sundry occasions wffthin the period of twelve months, when he had observed the offensive smells, and refused to confine the witness to a period between the first of March, the day laid in the indictment, and the 16th of June, when the inquisition was found. To this ruling the defendant excepted, and this forms the single subject for review. The appellant contends, that the offence charged is a continuous act running through a certain period of time, designated in the indictment, and therefore no evidence of the existence of the nuisance, at an anterior date was admissible. If we regard the time mentioned in the in ²⁷⁴ dictatent as descriptive of the offence as committed between two-designated dates, and therefore material and necessary to be proved as laid, which we take to be the idea of the appellant’s solicitor, still we cannot see that the Oourt has committed any error in allowing the question in the form put.

Conceding that it was necessary for the purposes of nonviction to prove the offence as charged, within the period designated, the Attorney-General has argued, that the maintenance or continuance of a nuisance involves its