
    Commonwealth vs. Samuel A. Smith & others.
    It is no offence against the law, to utter loud cries and exclamations in the public streets, to the great disturbance of divers citizens; such acts, if an offence at all, constitute a nuisance, and must be alleged to be to the great damage and com mon nuisance of all the citizens.
    The defendants were tried before Mellen, J., in the court ot common pleas, and convicted, on a complaint originally made to a justice of the peace, in which it was alleged, that the defendants, on the 17th of April, 1850, at Grafton, “ with force and arms, were disturbers and breakers of the peace, and then and there contriving and intending to disturb the peace of said commonwealth, did, in one of the public streets and other public places of said town, utter loud exclamations and out-tries, and other loud noises, and did then and thereby draw together a number of persons, to the great disturbance of divers citizens, in evil example to all others in like cases to offend, against good morals, against the peace of said commonwealth, and contrary to the form of the statutes in such case made and provided.”
    The defendants moved in arrest of judgment, on the ground, that no offence was set forth and alleged in the complaint The motion was overruled, and the defendants excepted.
    
      G. F. Hoar, for the defendants,
    cited Commonwealth v. Thurlow, 24 Pick. 374; Rex v. Smith, 2 Stra. 704; 2 Hawk. c. 75, §§ 1, 2, 3,4, 5, 6, 11, and note; Whart. Prec. 402, note b, 411; 3 Chit. Cr. Law, 647; 3 Bl. Com. 216; 4 Bl. Com. 167; The King v. Lloyd, 4 Esp. R. 200; Commonwealth v. Faris, 5 Rand. 691; 1 Russ. Cr. 327.
    
      Clifford, attorney-general, for the commonwealth.
   Dewey, J.

The judgment in this case must be arrested. No offence is technically charged in this complaint. The “ disturbance of divers citizens ” by noises in the public streets is not a proper setting out of the offence here intended to be charged. If the acts done by the parties constitute any criminal offence, it is that of a nuisance. As such it ought to have been alleged, that the noises made by the defendants were to the great damage and common nuisance of all the citizens of the commonwealth, there inhabiting, being, and residing, &c

Judgment an ested.  