34 Ind. App. 346 | Ind. Ct. App. | 1905
Lead Opinion
This is an appeal from'a judgment of tbe Gibson Circuit Court imposing a fine of $100 and tlie costs of tbe suit upon tlie appellant for maintaining a nuisance in tbe operation of-a factory for the manufacture of products of merchandise from the bodies of dead animals. The prosecution Vas upon affidavit and information. The information was in three counts. Motions to quash were sustained as to tlie first count, and overruled as to the second and third. The appellant was found guilty upon the third count.
The first question for decision arises upon the action of the court in overruling the motion to quash the third count. So far as essential to the decision it was as follows: “That the Acme Eertilizer Company, a corporation, on the 10th day of February, 1903, and at divers other times since said day, at Gibson county, State of Indiana, did unlawfully erect, continue, use and maintain a public nuisance, to tbe injury of many of tbe citizens of. the State of Indiana, by erecting and maintaining near tbe dwelling-houses and homes of divers citizens of said county a building known as the Acme Eertilizer Plant, situate on the following described real estate in Gibson county, in the State of Indi
Appellant’s contention is that there are no facts stated in the information showing other than individual injury to natural persons in respect to their private enjoyment of their homes and property; that any one of such persons could have maintained a civil action, but that no injury to anyone in his capacity as" a part of the public is shown. If the nuisance charged is a mixed one, as above defined, the right to maintain a private action would depend upon proof of a special injury different in kind from, and additional to, that suffered by the general public. Sohn v. Cambern (1886), 106 Ind. 302.
It is contended that §2154 Burns 1901, §2026 R. S. 1881, defines the form of a public nuisance that arises in the maintenance of any building for the exercise of any trade, employment or business, which, by occasioning noxious exhalations or noisome and offensive smells, becomes
The objection to the information — assuming that the offense is defined by §2154, supra — -is that there is no averment that the building was erected, continued, used or maintained for the exercise of any trade, employment or business, and that such averment is an essential element of the definition given in §2154, supra. The information is not subject to the criticism. To charge the erection and maintenance of a building for the manufacture of products from the bodies of dead animals, and the carrying on of the business of manufacturing products from tlie bodies of dead animals, is sufficient to show that such building was used or maintained “for the exercise of any trade, employment or business.” An expression contained in the brief filed on behalf of the State, which is relied upon as admitting the insufficiency of the indictment under §2154, supra, was evidently made through inadvertence. If tho offense charged in the information under consideration is not within the definition contained in §2154, supra, the sufficiency of the facts stated to constitute a nuisance must be determined by a reference to the definition of that term, which, as has been before stated, is not substantially different at common law from the definition contained in the civil code. Thus measured, the facts stated are sufficient to constitute a nuisance. Therefore, there was no error in overruling the motion to quash the third count of the information.
The argument made as to- the sufficiency of the evidence to support the finding generally, and as to the admissibility of the testimony, is ineffective, in view of the construction given to the information herein.
Judgment affirmed.
Concurrence Opinion
concurs in the result, but dissents from any expression in tire opinion which would seem to recognize common law offenses in this State.