91 Ind. 291 | Ind. | 1883
— In this case John Dennis and James Coffield were jointly prosecuted, tried and convicted, upon affidavit and information, for maintaining and causing to be maintained a public, nuisance. From the judgment of conviction, they have appealed to this court, and have here assigned a
Appellants’ counsel first insist that the trial court erred in giving the jury the following instruction: “ If the defendants maintained a slaughter-house, as charged in the affidavit and information, and allowed and permitted offal of cattle and other animals slaughtered there, if any, to there accumulate as alleged in the information, and noisome and offensive smells were then and there emitted therefrom, which blended with noisome smells emanating from another slaughter-house and a deposit of filth in the vicinity of said slaughter-house, if any, and rendered the air impure or unhealthful, to the injury of the persons named in the information, as therein alleged, the defendants would be liable, and the fact that such other slaughter-house and deposit of filth existed, and exhaled such noisome smells, if such is the fact, would not justify or excuse the wrongful act of the defendants, if provable.”
Of this instruction appellants’ counsel say: “ This charge in effect declares to the jury that the defendants are guilty, if they maintained a slaughter-house, as charged, and suffered and permitted offal to remain and collect thereabouts, and noisome and offensive smells were emitted therefrom, although insufficient to injure or damage either person or property; yet, if this smell, blended with the noisome and offensive smells emanating from another slaughter-house and a deposit of filth in the vicinity of such slaughter-house, rendered the air impure or unhealthful, to the injury of the persons named in the information, then and in such case the defendants are guilty.”
The charge is not fairly susceptible, we think, of the construction which counsel place upon it. Fairly construed, the instruction told the jury that, if the defendants allowed the
It is next claimed by the appellants’ counsel, that the first instruction of the court to the jury was erroneous. It was charged in the affidavit and information, among other things, that the defendants at, etc., on, etc., and near the dwelling-houses of Joseph Loehr, Noble Warrum and Rufus Scott, and divers other citizens, etc., unlawfully maintained, and caused to be maintained, in said county, a slaughter-house for the purpose of slaughtering cattle, etc., where they, the defendants, unlawfully caused and suffered the entrails and offal of cattle, hogs and other animals to be collected and remain in and about their slaughter-house to the injury óf Joseph Loehr, Noble Warrum and Rufus Scott, and divers other citizens being, passing and residing near their slaughter-house, by reason whereof divers noisome and offensive smells were from them emitted, etc., so that the air then and there was filled and impregnated with such smells, and made offensive, uncomfortable, unwholesome and injurious to the health, comfort and property of said citizens and individuals, etc., to their dam
. - Is the phrase “ near the residence of Joseph Loehr, Noble
It was error in the court, therefore, to instruct the jury as it did, in effect, in the instruction under consideration, that the State is entitled to a conviction, even though it had not proved the matter of description above quoted, precisely as ■charged in the affidavit and information.
Other instructions of the court are complained of in argument by the appellants’ counsel, but these need not be considered, as the motion for a new trial ought to have been sustained for the error in giving the first instruction.
The judgment is reversed, and the cause is remanded for a mew trial.