State v. . Wilkes , 170 N.C. 735 ( 1915 )

Criminal action. The defendant was convicted, and from the sentence of the court appeals. The defendant was prosecuted on a warrant issued from the county court of Richmond County, charging him with maintaining a nuisance in keeping a filthy stable.

Chapter 62, Public Laws 1911, in section 12, provides, in part: "Whenever and wherever a nuisance shall exist which in the opinion of the county superintendent of health is dangerous to the public health it shall be his duty to notify in writing the parties, responsible for its continuance, of the character of the nuisance and the means of abating it. Upon this notification the parties shall proceed to abate the nuisance"; and in section 13 provides: "If any person, firm, corporation, or municipality responsible for the existence and continuance of a nuisance, after being duly notified in writing by the county superintendent of health to abate said nuisance, shall fail to abate the same for twenty-four hours after such notice prescribed, he shall be guilty of a misdemeanor, and shall be fined $2 a day as long as said nuisance remains."

There is abundant evidence which justified the conviction of the defendant for maintaining a nuisance. The facts are, according to the testimony offered by the State, that his stable was situate within 4 feet of a dwelling-house within which a family lived; that it was in a foul and filthy condition to such an extent that one witness testified, who resided in the house, that at some times he could not eat his meals. The evidence shows that he was notified by the health officer, Dr. Everett, and that he failed to abate the nuisance as required by the statute. The motion of the defendant to strike out the testimony of Dr. Everett as incompetent was properly overruled. Assuming that it was incompetent, it had been admitted without objection, and it was within the sound discretion of the trial judge whether he would strike it out at that stage of the case. S. v. Lane,166 N.C. 333; S. v. Efler, 85 N.C. 585.

The court very properly excluded testimony tending to prove the condition of other stables in the same locality. Such testimony tended to throw no light upon the condition of the defendant's stable. The court very properly refused the defendant's oral request for instructions. All prayers for instructions must be in writing. Section 538 of the Revisal; S. v.Horton, 100 N.C. 443.

No error.

Cited: S. v. Bass, 171 N.C. 783, 784 (1j).

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