2. Contempt and Indictment. It appears that an act which is a contempt of court and also a crime 1 may be pursued both by the summary process and by indictment, and neither will bar the other.2 3. Other Cases-there are depending on this principle, but the limits of the doctrine are not distinct.3 § 1068. Statutes and By-laws, as severally forbidding the same act, and their effect upon a double jeopardy, are mentioned in a preceding section.* § 1069. 1. Civil Proceedings Therefore do not bar criminal ones.5 2. Damages for Loss of Life. A statute giving civil damages to the representatives of one deprived of life through another's neglect, does not conflict with the constitutional provision we are considering; even though, for the same neglect, an indictment is also provided. IX. The Doctrine of Autrefois Attaint. § 1070. General. When this country was settled, the English law, with some exceptions, did not permit a person attainted of one felony to be prosecuted for another. This doctrine was recognized in one or two early American cases, but otherwise we have no trace of it in the jurisprudence of this country. In England it was long ago abolished by act of Parliament.10 It probably originated in the idea that after a man was condemned to death it would be useless to proceed against him for a second capital offence, since he could die only once. 1 Vol. II. § 264-267. 2 Rex v. Lord Ossulston, 2 Stra. 1107. 3 See S. v. Plunkett, 3 Harrison, 5; S. v. Sonnerkalb, 2 Nott & McC. 280; Hodges v. S. 8 Ala. 55; S. v. Keen, 34 Me. 500; Simpson v. S. 10 Yerg. 525; S. v. Tappan, 15 N. H. 91; S. v. Thompson, 2 Strob. 12, 47 Am. D. 588; ante, $ 1029 (4). Ante, § 1029 (3); Stat. Crimes, § 23; S. v. Thornton, 37 Mo. 360, 361; S. v. Cowan, 29 Mo. 330; Levy v. S. 6 Ind. 281; Waldo v. Wallace, 12 Ind. 569; 642 Gardner v. P. 20 Ill. 430; Fant v. P. 45 5 Ante, § 1067. 6 Chiles v. Drake, 2 Met. Ky. 146, 74 Am. D. 406. 7 4 Bl. Com. 336; 3 Inst. 213; 2 Hale P. C. 252-254; Armstrong . L'Isle, 12 Mod. 109. See Rex v. Birkett, Russ. & Ry. 268. 8 Crenshaw v. S. Mart. & Yerg. 122, 17 Am. D. 788. 9 See Peri v. P. 65 Ill. 17. § 1070 a. The Doctrine of this Chapter restated. The common law, following natural justice, embodies the principle that a man shall not be twice brought to trial for the same offence. The constitutions of the United States and most of our States have given shape and permanence to this principle, by providing that no one shall be "subject for the same offence to be twice put in jeopardy of life or limb." This guaranty, which by a literal interpretation would extend only to treasons and felonies, is, as it should be, by construction of the courts made to include also misdemeanors; for its purpose is to benefit accused people, and laws with this purpose are always rendered liberally so as to comprehend what is within their spirit though not within their letter. In other respects, this rule of interpretation is in many of the cases not thought of by the courts, and other obvious principles are overlooked, so that our books contain numerous decisions wherein this constitutional right has been denied to the prisoner. Thereby a blemish has been wrought in our adjudged law. Still, on the whole, the cases within this chapter are fairly well considered. It is deemed not necessary here further to retrace our steps. 1 Const. U. S. amendm. 5. 643 BOOK IX. NUISANCE. CHAPTER LXIV. THE GENERAL DOCTRINE OF NUISANCE. Order of Arrangement. § 1071. Introduction. 1072-1078 b. As Indictable. 1079-1082. As Abatable. By the natural order of arrangement, and as in Crim. Pro. it is, the several chapters of this Book should be alphabetically interspersed with those of the second volume. The departure from that order here is to keep the volumes duly balanced in size. Consult, for the pleading, evidence, and practice, Crim. Pro. II. § 860-878. And Compare with Bishop Non-Con. Law, § 409-432, for the private wrong. § 1071. Elsewhere. In preceding chapters, much on this subject appears interspersed with other matter. And some of the secondary nuisances, not included in this Book, are treated of in the second volume 2 and in "Statutory Crimes." 3 How Chapter divided. We shall consider, I. Nuisance as Indictable; II. Nuisance as Abatable. I. Nuisance as Indictable. § 1072. 1. Defined. A public or common nuisance is any act or neglect the product of which works an annoyance or injury to the entire community; or, the product itself is termed a nuisance.4 1 Ante, § 221, 227, 236, 243-245, 265, 316, 341, 419-422, 433, 490, 491, 531, 686, 792, 816-835, and some other places. 2 For example, BARRATRY; BLASPHEMY AND PROFANENESS; LIBEL; LORD'S DAY; RIOT; SEPULTURE; THREATENING 3 As, DRUNKENNESS; LIQUOR NUISANCE; TIPPLING-SHOPS. 4 Hawkins defines it as 66 an offence 2. Common-law or Statutory. - This is a common-law offence; but like others it is subject to be, and it often is, enlarged and otherwise defined by statutes.1 This offence is peculiar in § 1073. Abatable and Indictable. that, besides being punishable, it has a product liable to be abated, as mentioned in a preceding chapter 2 and to be further explained in our next sub-title. Again, – § 1074. 1. Actionable and Indictable. While this offence is indictable, it is also, like others, actionable by one who has been specially damaged. But 2. Intensity of Evil. No intenser evil is required to render it indictable than actionable. Moreover, 3. Civil in Essence. The doctrine that in exceptional circumstances a proceeding in the criminal form may be in effect civil, and partly governed by the rules of civil suits, has its most apt illustrations in nuisance. Thus, (Intent - § 1075. Obstructing River One Acts of Servants). in England was indicted for obstructing the navigation of a river by his manner of carrying on some works near its bank. His workmen had deposited rubbish where it had fallen into the river; and he offered to show in defence that they did it in violation of his express orders, while still it was in the general course of the business. In an ordinary criminal case, this fact would have constituted a complete defence, as showing an absence of the criminal intent, but the court rejected it. For though the against the public, either by doing a thing which tends to the annoyance of all the king's subjects, or by neglecting to do a thing which the common good requires." 1 Hawk. P. C. Curw. ed. p. 692, § 1. See, for the definition of a private nuisance, Bishop Non-Con. Law, § 411 and note. Nuisance, whether public or private, is in its nature difficult to be defined. The criticism of this definition of Hawkins's, which in a sort of general way is followed by Blackstone, is that it is so indefinite as to comprehend any amount of wrong other than nuisance. My own definition is certainly more definite, but I do not think our language supplies the words to express the idea exactly, comprehensively, in a single sentence, and in a way fully to satisfy legal criticism. Gaston, J. in a North Carolina case, observed that the act "should be an offence so inconvenient and troublesome as to annoy the whole community, and not merely particular persons." S. v. Baldwin, 1 Dev. & Bat. 195, 197. As to which see ante, § 243245; post, § 1077, 1078. 1 McLaughlin v. S. 45 Ind. 338; S. v. Fisher, 52 Mo. 174; Watertown . Mayo, 109 Mass. 315, 12 Am. R. 694; Overman v. S. 88 Ind. 6; S. . Archibald, 59 Vt. 548, 59 Am. R. 755; S. v. Wheeler, 15 Vroom, 88; S. v. Cainan, 94 N. C. 880; S. v. Howard, 72 Me. 459; S. v. Pierce, 65 Iowa, 85; North Chicago City Ry. v. Lake View, 105 Ill. 207, 44 Am. R. 788. 2 Ante, § 821-835. 3 Ante, § 265. 4 Ante, § 236. 5 Ante, § 33, 264-267, 531, 713, 954-957. 6 See ante, § 316 (3). suit was in form criminal, " I think," said Mellor, J., "it is in the nature of a civil proceeding, and I can see no reason why a different rule should prevail," in a case of this nature, "between proceedings which are civil and proceedings which are criminal. I think there may be nuisances of such a character that the rule I am applying here would not be applicable to them; but here it is perfectly clear that the only reason for proceeding criminally is that the nuisance, instead of being merely a nuisance affecting an individual, or one or two individuals, affects the public at large, and no private individual without receiving some special injury could have maintained an action. . . . The prosecutor cannot proceed by action, but must proceed by indictment; and if this were strictly a criminal proceeding, the prosecution would be met with the objection that there was no mens rea, that the indictment charged the defendant with a criminal offence when in reality there was no proof that the defendant knew of the act, or that he himself gave orders to his servants to do the particular act he is charged with. . . . Inasmuch as the object of this indictment is not to punish the defendant, but really to prevent the nuisance from being continued, I think that the evidence which would support a civil action would be sufficient to support an indictment." 1 § 1076. The Doctrine of this English case may almost be deemed new in the criminal law, yet there were before some familiar cases lying near it. And, properly limited, the doctrine is eminently worthy to be followed hereafter. § 1077. 1. Already, in preceding chapters, the leading doctrines of this chapter are pretty fully unfolded; as, under the title "How far the Wrong must be Public," and in successive chapters further on wherein it is explained how far the criminal law affords protection to the "Public Health," to "Religion, Public Morals, and Education," to the "Population and the Wealth of the Country," to the " Public Convenience and Safety," and to the Public Order and Tranquillity."4 Also, 66 2. How many annoy. In a general way, we have seen how many of the public a nuisance must annoy to render it indictable.5 Said a learned judge: "Every nuisance is annoying to only a few 1 Reg. v. Stephens, Law Rep. 1 Q. B. 702, 708, 709, 710. 2 See ante, § 219-221, 316 (3), 317. 8 Ante, § 229 et seq. * Ante, § 489-542. 5 Ante, § 243-245, 1072 and note. |