171 Ind. 283 | Ind. | 1908
Appellant was convicted of violating section one of the act of 1907, in relation to employes in coal mines (Acts 1907, p. 193, §8623 Burns Í908), which section reads as follows: ‘ That for the protection of the health of the employes hereinafter mentioned it shall be the duty of the owner, operator, lessee, superintendent of, or other person in charge of every coal mine or colliery, or. other place where laborers employed are surrounded by or affected by similar conditions as employes in coal mines, at the request in writing of twenty or more employes of such-mine or place, or in event there are less than twenty men employed, then upon the written request of one-third of'the number of employes employed, to provide a suitable wash
Section two (§8624 Burns 1908) prescribed penalties for neglect or failure to comply with the provisions of the act, and for other offenses.
The body of the affidavit upon which appellant was tried and convicted reads as follows: “Harry Moore swears that John Hewitt, late of said county, on or about the 7th day of May, A. D. 1907, at said county and State aforesaid, he, said John Hewitt, being then and there and from said day continuously up to the time of filing this affidavit, and being now superintendent of Lost Creek mine, a coal mine where persons were then and there, and have been continuously since said date, and are now, employed, situate in said county and State aforesaid, and he, said John Hewitt, as said superintendent, being then and there requested in writing by more than twenty of the employes of said Lost Creek coal mine to provide suitable wash-room or wash-house for the use of persons there employed at said Lost Creek mine, in compliance with the laws of the State of Indiana, did then and there and has ever since, and does now unlawfully, neglect, fail and refuse to provide such suitable wash-room or wash-house for the use of persons there employed at said Lost Creek coal mine, and did then and there, and has ever
Harry Moore.”
The sufficiency of this affidavit was challenged by motions to quash and in arrest of judgment in the trial court, and the overruling of these motions has been assigned as error upon appeal.
The statute imposes upon the owner, operator, lessee, superintendent, or other person in charge of any mine or colliery, upon request of, a certain number of employes, the duty of providing a wash-room or wash-house for said employes.
If we concede that it was proper to charge in the affidavit, as was done, that appellant “being” then and there superintendent, etc., as in the nature of inducement to bring him within the class upon whom the prescribed duty was imposed, yet we think the expression “being requested,” etc., was a mere recital, and not sufficient. The fact should have
For the reasons indicated, the affidavit should have been quashed.
The judgment is reversed, with directions to sustain appellant’s motion to quash the affidavit.