
    The People, Resp’ts, v. W. T. Monteverde, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 15, 1887.)
    
    1, Public nuisance—What necessary constituent oe—Penal Code, § 885.
    That a person may be adjudged guilty oí the commission of a public nuisance there must be an unlawful act or omission brought home to him. Penal Code, § 385.
    3. Same—Conviction op—When improper.
    Where the defendant owed no duty which he omitted to perform and did no unlawful act Held, that he was improperly convicted of the commission of a public nuisance.
    
      J. Fleming, for the people; B. W. Downing, for app’lt.
   Dykman, J.

The defendant was indicted for a public nuisance, and when he was arraigned he interposed a demurrer to the sufficiency of the indictment, which was overruled He was then tried upon a plea of not guilty and convicted, and the case comes here upon the indictment, the charge of the trial judge and the exceptions thereto, without the testimony brought forward on the trial.

The serious question in the case is presented by the indictment, which fails to charge the defendant with the ■commission of any unlawful act, or the omission to perform .any duty, and in this state no person can commit a public nuisance without being guilty of an unlawful act or omission. Penal Code, § 385.

The indictment charges that the defendant, on the ninth day of May, 1886, and on divers other Sundays, was the owner, occupant, proprietor or lessee of a certain park and premises in Queens county, at which time and place he wilfully," wrongfully and unlawfully did permit and allow ■a large number of people to assemble to play and witness a game of base ball, and then and there afiowed and permitted bad language and great noise, confusion and uproar.

There is no charge that he was present at the game or was aware of the assemblage of the spectators, or that he induced the people to play or witness the game, or derived any benefit therefrom. Every allegation in the indictment may be true, and yet the defendant be perfectly innocent of any crime. If the people invaded the premises of the defendant and played the game, and he found it beyond his power to prevent them and walked away, he permitted and allowed the. transaction by not preventing the same, and yet such conduct on his part would not constitute the crime of nuisance.

He owed no duty which he omitted to perform, and he did no unlawful act. There must be something more than mere negative tacit admission or allowance to constitute the crime of nuisance. There must be some unlawful action or participation of the accused, and that element is entirely wanting in this indictment.

The demurrer to the indictment should have been sustained, and the conviction of the defendant thereon is erroneous, and should be reversed.

Pratt, J., concurs; Barnard, P. J., dissents.  