Gay (D) was indicted and convicted for a nuisance. D kept a hog-pen that caused an offensive odor. The evidence conflicted on whether the pen was filthy and whether the smell came from D's pen or a number of other hog-pens in the neighborhood. The judge instructed the jury that guilt could be found even if the smell of D's pen was itself not sufficient to constitute, but only contributed to the nuisance with the smells of the other pens. D appealed.

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