orally. — The objection to testimony assumes, that the indictment charges, in the same count, two distinct proceedings on the part of the defendants, and that, therefore, the government, in its proofs, were bound to discriminate which of those proceedings occasioned the injurious results alleged. But the indictment is not thus defective. It charges, that the shop was erected and maintained for the purposes of the trade described; that the defendants did therein carry on that trade, and in the exercise of that trade, collected and kept certain offensive matters; and, that in manner aforesaid, they collected and kept certain other specified offensive matters, and, that by reason of the premises, that is, by the exercise of the trade, and by collecting the offensive matters in the exercise of the trade, the evil results followed. The term, “premises,” used in the indictment, includes both the exercise of the trade and the accumulation of the hurtful materials in that exercise of the trade. The defendants requested, that the question to the witness should be limited either to the exercise of the trade, or to the accumulation of the noxious matter. But, as the indictment included both, *40there was no ground for the request; and there was no error in admitting the answers, as they were given.
When an indictment alleges particular facts, and that those facts constituted an offence, the government is to prove the facts, and is entitled to prove them all. Whether the facts are properly alleged, or, if proved, would constitute a crime, cannot be raised in the examination of testimony. Those points would be properly presented on motion in arrest of judgment.
The defendants requested instruction to the jury, that the indictment was not maintainable at the common law.
The indictment alleges certain facts, and concludes, “ against the peace and contrary to the form of the statute.” It therefore proceeds expressly upon the statute. When an indictment claims a conviction upon a statute, can the Court be required to instruct the jury whether it could be sustained at the common law ? That would not be a question for the jury, and the Judge was not bound to give them that instruction.
The defendants claim that an indictment for exercising a noxious trade is unsustainable, unless some place for the exercise of it had been previously assigned.
The stat. chap. 164, sect. 2, provides that the selectmen, <fcc. may, “ when they judge it necessary,” make such an assignment. They are not required to do it, unless they judge it necessary.
Then, are persons allowed to exercise such a trade, in any place they may choose, merely because it has not been thought necessary to assign a particular place for it,? We think the offence is not made to depend upon the exercise of that power by the selectmen, but rather the contrary. The obvious intent of the first section is to prohibit such nuisances. The second section, by authorizing thé assignment of places, even before the evils had occurred, rather accumulates the power to prevent such offences. The requested instruction, therefore, could not legally have been given.
Exceptions overruled. —
Case remanded to the District Court.