Commonwealth v. Wing , 26 Mass. 1 ( 1829 )

Parker C. J.

delivered the opinion of the Court. If the indictment were for a nuisance, the authorities cited by the defendant’s counsel would clearly show, that it could not be sustained ; for the most that could be made of it would be a private nuisance, for which an action on the case only would lie. But we think the offence described is a misdemeanor, and not a nuisance. It was a wanton act of mischief, necessarily injurious to the person aggrieved, after full notice of the consequences, and a request to desist. The jury have found that the act was maliciously done.

In the case of Cole v. Fisher, 11 Mass. R. 137, Chief Justice Sewall, in delivering the opinion of the Court, speaking of the discharging of guns unnecessarily, says, if it is a matter of idle sport and negligence, and still more when the act is accompanied with purposes of wanton or deliberate mischiei, the guilty party is liable, not only in a civil action, but as an uffender against the public peace and security, is liable to be indicted, &c.

Now the facts proved in the case, namely, the defendant’s previous knowledge that the woman was so affected by the report of a gun, as to be thrown into fits, the knowledge he had that she was within hearing, the earnest request made to him not to discharge his gun, show such a disregard to the safety and even the life of the afflicted party, as makes the firing a wanton and deliberate act of mischief.

Judgment on the verdict.