112 Ind. 105 | Ind. | 1887
The appellant was charged and found guilty of haying unlawfully erected and maintained a public nuisance, in Clinton county, by erecting and maintaining near the dwelling-houses of divers inhabitants of the county a building and appurtenances, in and about which he kept,, fed and slaughtered large numbers of chickens, geese and ducks, and in and about which was deposited offal from the-slaughtered poultry, thereby creating noisome and unwholesome smells, etc., to the damage and nuisance of all the inhabitants of the State then and there being and residing, etc.
An objection is taken to the affidavit and information, because they do not point out and specifically describe the particular location of the alleged nuisance.
This was not necessary. No useful purpose would be sub-served by stating the exact location of a nuisance, unless there was a request for an order abating the alleged offensive thing or structure. Wertz v. State, 42 Ind. 161; Howard v. State, 6 Ind. 444.
A further objection to the affidavit and information is, that the names of the persons near whose dwelling-houses the alleged nuisance was erected and maintained are not given.
It has been repeatedly ruled that statements of that character are matters of description merely, and not of venue, and that although they are immaterial and unnecessary, yet if made they must be proved substantially, some of the cases say precisely, as made. Dennis v. State, 91 Ind. 291; Mergentheim v. State, 107 Ind. 567.
The appellant filed an affidavit upon which he moved the court for a change of venue from Clinton county, on account of the bias and prejudice of the citizens. We are unable to tell from the record whether the motion was overruled or withdrawn. Nothing is disclosed one way or the other. It is immaterial, however, as the case is one in which the granting or refusing a change of venue is wholly within the discretion of the court. Section 1771, R. S. 1881.
Finally, it is contended that the verdict was not sustained by the evidence, in that the proof failed to show that unwholesome and offensive smells were emitted from the appellant’s building and premises.
An examination of the record, however, makes it readily apparent that, under the rule of this court, the verdict can not be disturbed for want of evidence.
Judgment affirmed, with costs.
