Keefer v. State
92 N.E. 656
Ind.
1910
Check Treatment
Monks, C. J.

Appellant was convicted before a justice of the peace on an affidavit charging him with maintaining a nuisance, by blasting stone in his stone-quarry, thereby сasting rock upon the surrounding properties and highways. He appealed to the court below, where he was again convicted.

1. Appellant first insists thаt the court erred in overruling his motion to quash the affidavit. Section 2440 Burns 1908, Acts 1905 p. 584, §534, prоvides that “every person who shall erect, or continue and maintain any рublic nuisance, to the injury of any part of the citizens of this State, shall, on conviction, be fined not exceeding $100.” While said section does not specifically define the ciime of nuisance, the courts will define the crime by the aid of the common-law definitions and the import of the language used. Sopher v. State (1907), 169 Ind. 177, 181, 14 L. R. A. (N. S.) 172; Ledgerwood v. State (1893), 134 Ind. 81, 89, and cases cited; State v. Berdetta (1880), 73 Ind. 185, 38 Am. Rep. 117. It has also been held that §291 Burns 1908, §289 R. S. 1881, may be looked to for that purpose. Said section reаds as follows: “Whatever is injurious to the health, or indecent, or offensive ‍​​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌​​​‌​​​‌​​​‌‌‍to the senses, or an obstruction to the free use of property, so as essеntially to interfere with the comfortable enjoyment of life or propеrty, is a nuisance, and the subject of an action.” Hackney v. State (1856), 8 Ind. 494; Moses v. State (1877), 58 Ind. 185; Russell v. State (1904), 32 Ind. App. 243, 245; Gillett, Crim. Law (2d ed.) §640.

*5902. *589The term “public nuisance,” as used in the statutes pro*590viding a punishment for maintaining a рublic nuisance, has a well-defined, legal meaning, and sufficiently designates the class of prohibited acts. Gillett, Crim. Law (2d ed.) §640; Burk v. State (1867), 27 Ind. 430; State v. Taller (1905), 34 Ind. App. 393, 396, 397, 107 Am. St. 256, and cases cited; Russell v. State supra. It was said in the case of State v. Taller, supra: “A nuisance is a public nuisance if it annоys such part of the public as necessarily comes in contact with it.” It is evidеnt that §2440, supra, covers every case of nuisance within its provisions, except suсh ‍​​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌​​​‌​​​‌​​​‌‌‍as are specifically defined and provided for in other sections.

3. Appellant contends that the acts charged in the affidavit do not constitutе a nuisance under any of the other sections of the statute. Acceрting this contention as correct, it is only necessary to determine whether said acts constitute a nuisance under §2440, supra.

4. Blasting stone in quarries, thereby casting rock upon the surrounding properties and highways, was indictable at common law as a nuisance. 1 Russell, Crimes (6th ed.) 736; 1 Russell, Crimes (9th Am. ed.) *438, *439; Reg. v. Mutters (1864), L. & C. C. C. 491, 10 Cox Cr. Cas. 6, 34 L. J. (M. C.) 22; Scott v. Firth (1864), 4 F. & F. 349. See, also, Joyce, Nuisances §124; Wright v. Compton (1876), 53 Ind. 337, and cases cited; People’s Gas Co. v. Tyner (1892), 131 Ind. 277, 31 Am. St. 433, 16 L. R. A. 443; Scott v. Bay (1853), 3 Md. 431; Hay v. Cohoes Co. (1849), 2 N. Y. 159, 51 Am. Dec. 279; Termain v. Cohoes Co. (1849), 2 N. Y. 163, 51 Am. Dec. 284; St. Peter v. Denison (1874), 58 N. Y. 416, 17 Am. Rep. 258; Sullivan v. Dunham (1900), 161 N. Y. 290, 55 N. E. 923, 76 Am. St. 274, 47 L. R. A. 715 and notes; Longtin v. Persell (1904), 30 Mont. 306, 76 Pac. 699, 65 L. R. A. 655 and note, 104 Am. St. 723 and note; Graetz v. McKenzie (1893), 9 Wash. 696, 35 Pac. 377; Central Iron, etc., Co. *591v. Vandenheuk (1906), 147 Ala. 546, 41 South. 145, 6 L. R. A. (N. S.), 570, 119 Am. St. 102.

5. It is also insisted by appellant that said “affidavit is so ambiguous, uncertain and indefinite” that it it not sufficient upon any theory. It aрpears from the affidavit that appellant “unlawfully erected and maintained a stone-quarry, and place of blasting and shooting, with dynamite, stone and rock, near to and by the dwelling-houses of divers inhabitants of said county and near сertain public highways and streets along and through which divers inhabitants of such county and State were continually passing, and that he did then and ‍​​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌​​​‌​​​‌​​​‌‌‍there shoot, dynamite аnd blast such stone and rock at and in said quarry, causing noisome, loud, shocking and tеrrifying noises, and hurling rock and stone over and upon the premises and proрerty of said inhabitants, obstructing the public highways and streets at and by said stone-quarry, whereby the property of the inhabitants there living is injured in value, their comfortable enjoyment of life prevented, and the health and comfort of the public passing along and upon said highways and streets there situated endangered,” еtc.

While the affidavit is not a model, it is not so ambiguous, uncertain and indefinite as to be insufficient on a motion to quash. Gillett, Crim. Law (2d ed.) §125. As the facts alleged in the affidavit constituted a public nuisance at common law, it is evident that the affidavit is sufficient under §2440, supra. All the acts charged constitute but one nuisance. Meyers v. State (1907), 169 Ind. 403. It follows that the court did not err in overruling the motion to quash the affidavit.

6. Thе motion for a new trial, upon which appellant relies, was not “filed within thirty days from the date of the ‍​​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌​​​‌​​​‌​​​‌‌‍verdict,” as required by §2158 Burns 1908, Acts 1905 p. 584, §282. It was held by this court in the case of Ward v. State (1909), 171 Ind. 565, citing numerous authorities, that a motion for a new trial in a crim*592inal case, filed after the time fixed by §2158, supra, “was unauthorized, and presents no question for review by this court.” The reasons for so holding were fully stаted in that case and in the cases there cited. See, also, Quinn v. State (1890), 123 Ind. 59.

Having dispоsed of all the questions presented by appellant’s statement ‍​​‌​‌‌‌​​​​‌​‌‌‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌​​​‌​​​‌​​​‌‌‍of points, and finding no available error, the judgment is affirmed.