State vs. Buckman, 8 N.H. 203

Upham, J. There is no statute upon which this indictment can be founded. By the act “ to prevent common nuisances," it is made penal to lay or leave any dead beast or carrion within the compact part of any populous town within this state, (1 Laws N. H. 160,) but that statute cannot be made to apply to this case. The penalty there affixed bears no proportion to the aggravated nature of the charge here alleged ; and there is nothing in that statute to induce us to believe that it was designed to bear upon acts of this character, and there is no other statute upon which this indictment can be sustained.

The allegation being that the offence was contrary to the form of the statute, and there being no statute upon which it is founded, judgmeft cannot be rendered unless the words, against the form of the statute, can be holden as surplusage, and the charge as made shall be found to constitute a common law offence, in both of which particulars it is contended that the indictment cannot be sustained.

Where an offence as described in the indictment is punishable at common law only, and yet the indictment avers it to have been done against the form of the statute, it was formerly doubted whether the indictment was good at common Jaw. Lord Hale was of opinion that if the offence was not within the words of the statute, and the indictment concluded contra for mam, it should be quashed, though the offence described was indictable at common law. 2 Hale P. C. 171; Cro. Eliz. 231, Penhallow's case; Cro. Ca. 465, Chamley’s case; 2 Rol. Ab. 82.

But in numerous instances since, it has been holden that such words may be regarded as surplusage, and the law on this point may now be considered as perfectly settled in conformity to the later decisions. 2 Haw. P. C. ch. 25, s. 115, 116; 1 Ld. Ray. 149; 2 ditto 1163; 5 D. & E. 163, King vs. Matthews; 1 Chitty Crim. Law 289; 1 Sound. 135, n. 3. The only objection, then, remaining, is, whether the charge alleged is an offence subject to indictment at common law.

There is no question but the respondent was guilty of causing a nuisance of the worst character, and which tended seriously to affect the health of the complainant; but a nuisance which merely affects an individual is not punishable by indictment. The only remedy is by civil suit, and 'then only in cases where there has been special damage. Co. Lit. 56; 5 Rep. 73; 3 Black. Com. 219. There is a provision of the common law, however, for prohibiting offences which are strongly analogous to this.

Thus the selling of unwholesome provisions, or the mixture of poisonous ingredients in food or drink designed for any individual, are indictable offences at common law, whether done through malice or a desire of gain merely. 2 East's P. C. 822; 6 East 133; 3 Mau. & Sel. 10; 4 Camb. 10; 2 Chit. Crim. Laws 557, note. It is not the act of selling which is designed to be prohibited. Furnishing such provisions in any manner, or causing such unwholesome matter to be used, constitutes the offence.

There can be no question but the mixture of poisonous ingredients with the food or drink of another to such an extent as to impair the health of any individual receiving them, is punishable by indictment at common law ; and water infected with the noisome particles and effluvia of a dead animal thrown into it, must partake of a character so poisonous and unwholesome as properly to come within this class of offences. The fact that it was a wanton and malicious act will not exclude it from offences of this description.

On this ground we have no hesitation that the indictment may he sustained as charging an offence at common law. Judgment against the respondent.