People v. High Ground Dairy Co.

so conduct such business with the purpose of doing what the law forbids and' punishes ? The "evil and malicious spirit” would profit nothing, and would lead to punishment and to loss. In People v. Eckerson, 133 App. Div. 220 , 117 N. Y. Supp. 418 , cited by the defendant, Eckerson had countenanced the removal of earth upon his land at a considerable distance from the highway, and although a year elapsed there was no proof of either subsidence or disturbance of the highway. This court held that the evidence was insufficient to sustain the conviction. The expressions in the opinion relative to criminal intent must be limited to the facts, and I think that such expressions were used in consideration of the lack of evidence that the acts were done in “contemplation, and more or less expectation” (see Com. v. Kennedy, 170 Mass, at 21, 48 N. E. 770 ) that the highway could be affected, not to declare any rule that proof of criminal intent was essential in such cases. And the court doubtless had in mind the distinction between nuisance and negligence. See McCluskey v. Wile, 144 App. Div. 470 , 129 N. Y. Supp. 455 .

[2] I think that an order for abatement could have been made under section 953 of the Code of Criminal Procedure, but that the present order should not stand. The defendant protested against it, excepted to it, and contends that it was not justified, because the proof was limited to a period determined by the filing of the information, May 12, 1914, while the order was made on June 3, 1914. The information is that “on February 15, 1914, and continuously thereafter until the day of the filing of this information,” the defendant “did annoy,” etc. This is sufficient, under the authorities, to confer jurisdiction. Bishop’s New Crim. Law, vol. 1, § 1079, citing authorities; Rex v. Stead, 8 T. R. 142; Munson v. People, 5 Parker, Cr. R. 16 ; State v. Noyes, 10 Foster (30 N. H.) 279-298; Russell on Crimes, 1035-1839. It is true that the evidence indicates that there has been some cessation of the noise, and that the causes both of it and of the odors have been partially done away with. And it is also true that the proof of continuance is not strong, due somewhat to the limitations made by the court. But the presumption of the continuance that arose after proof of the nuisance, together with bits of evidence that cropped out here and there, are sufficient to- sustain an order for abatement.

[3, 4] When it appears that the public nuisance is in the doing of a lawful business, there cannot be abatement to the extent of closing out the business if a change in the manner of its doing will remove the evils. Babcock v. City of Buffalo, 1 Sheld. 317, approved as to this feature and affirmed 56 N. Y. 268 ; Taylor v. People, supra. I think that in such cases, and therefore in this case, the order should command the defendant to abate the nuisance forthwith at his own expense, and upon his default at the expiry of a prescribed time (which shall be reasonable) should command the sheriff to abate it. See Wood on Nuisances, § 864; Munson v. People, supra; Barclay v. Comm., 25 Pa. 503 ; 64 Am. Dec. 715 ; Campbell v. State, 16 Ala. 144 .

[5] But this order, issued o-n the very day of judgment, commands the sheriff in the first instance to abate the nuisance forthwith. I do not read the present order to command necessarily the closing out of

the business, and for the reasons stated it is not right that it should do so. The case at bar is an illustration of the unwisdom of such a devolution in the first instance. For, as it is impossible to dispatch business of this kind without some, at least, of the features of which the excess thereof constitutes the nuisance, the sheriff is and should be required only to deal with such excess. The order contains no specific instructions — the sheriff must determine the scope of his duty. And in any event it would be impossible for him to regulate this business, so as to preserve the relative rights of the defendant and of a considerable number of persons without virtually taking over the supervision of the defendant’s methods for a time.

[6] On the other hand, the offending is in the defendant’s business, the defendant must know the nature of the offending, and it is in the line of its business to remove it if possible. If it does not abate the nuisance, then it may find that the sheriff will do.so in a manner far more drastic. It is true that even then the sheriff must be the judge as to whether there has been abatement, but that is a much less onerous task than to set about the abatement in the first instance. Or the defendant who neglects or fails to abate will be in peril of a further information for a continuance of the nuisance (Munson v. People, supra), which might well be followed by an order of abatement that required the closing out of the business as the only effective remedy. And, finally, an order of the kind I have suggested could not harm the defendant, if, at the time it was made, the objectionable features did not exist, for there would be nothing to abate.

[7] I think that the appellant has no substantial grievance, in that the Special Sessions finally refused a continuance of the trial. It is true that the defendant went to trial with an understanding, from the expression of the court, that continuance would be granted in order that it might complete its case. But after the defendant’s counsel had examined nine of defendant’s witnesses, he did not stand absolutely upon his right of a continuance, but receded with the statement that he would close if the court would not be “prejudiced” because he had not brought in a great number of witnesses. The court, however, ascertained that the proposed witnesses had not been subpoenaed, and, even if available, would give testimony which the counsel admitted was “merely cumulative and negative.” It is entirely possible that in a criminal case a defendant might be seriously prejudiced if he was lulled into a consent to trial by the court’s promise of a continuance, but there is no such grievance in this case.

[8] I think that this court has the power to amend the order of abatement. Section 543, Code of Criminal Procedure; Campbell v. State, supra.

I advise that the judgment of conviction be affirmed, and that the order of abatement be modified in accord with this opinion, and, as modified, that it be affirmed. All concur.