117 Ky. 350 | Ky. Ct. App. | 1904
Lead Opinion
Opinion of the court by
Reversing.
Appellant was indicted for a common nuisance. The indictment charges that it was committed as follows: “The said Louisville & Nashville Railroad Company, in the said county of Hopkins, on the 16th day of May, 1908, and on many other days before the finding of this indictment, did
The court overruled the demurrer to the indictment. He also allowed proof to be given of various obstructions to the highway by different trains on different days within a year before the indictment was found, refusing to limit the Commonwealth to one day or one obstruction. He also refused to allow the defendant to read to the jury the ordinance of the town imposing a fine if a locomotive or train remained across a street of the town for a longer period than ten minutes, and instructed the jury, substantially in the language of the indictment, that if they believed from the evidence, beyond a reasonable doubt, the defendant! had obstructed! the street within twelve months, they should find it guilty. The jury found the defendant guilty, and fixed the fine at $585.
The ground of the demurrer to the indictment is that it does not identify the highway charged to have been obstruet
In Cincinnati Railroad Company v. Commonwealth, 80 Ky., 137, which was, like this, an indictment for obstructing a public road, it was held that it was not necessary that the road should be obstructed repeatedly or continuously, but that each ' obstruction of it was a separate offense. In Chesapeake & Ohio Railroad v. Commonwealth, 88 Ky., 368, 10 R., 919, 11 S. W., 87, two indictments were found against the defendant on the ■same day, charging it with obstructing a certain road with its cars. Each charged that the offense was committed at the same time, substantially in the same language. The defendant was acquitted under one of the indictments, and, being placed! on trial under the other, pleaded the judgment' in the former case in bar. It was held that the judgment under the first indictment was not a bar to the proceeding under the second, unless the same obstruction which was relied on in the second case was proved or attempted to be proved in the first case. The court said: “It is true, the indictments were found upon the same day.
Further on in the same opinion' the court also said: “In this character of case the State could, upon the trial of one indictment, select one particular act or offense and proceed for it; and under the other indictment, although found at the same time, it could prove a different one.”
Any obstruction of a highway is a, common law nuisance, and none is the less a nuisance if confined to one day. Thus it has been held an indictable nuisance for one traveler on a' highway unreasonably to obstruct the passage of another by constantly interposing his team as an obstacle. Wood on Nuisances, section 292. So it is a nuisance to feed hogs near a highway, or to keep a ferocious dog near by, to the interruption of travel. Wood on Nuisances, section 292. Where each of several acts which terminates in itself is itself a nuisance, each is a separate offense. See cases above cited. When a train of the defendant unreasonably ob
Section 768, Ky. St., 1903, makes it unlawful for a railroad company to obstruct any public highway or street by cars or trains for more than five minutes at one time. This provision is not restricted to the construction of the road, but applies to obstruction by cars or trains. The town is only authorized to make ordinances consistent with the stat-. utes of the State. Its ordinance, so far as it conflicts with the statute, is void. The circuit court had jurisdiction of the common law offense of obstructing a highway. The case of I. C. R. Co. v. Commonwealth, 104 Ky., 362, 20 R., 748, 990; 47 S. W., 255, only involved the question of variance. •We have been referred to no statute, and can find none, relating to. fifth-class cities, affecting the common-law jurisdiction of the circuit courts to punish for nuisances.
Judgment reversed, and cause remanded for further proceedings consistent herewith.
Rehearing
Response by
to a petition for a rehearing:
Although the statute provides no penalty for its violation, ;it forbids the obstruction of the street for more than, five minutes by trains or cars. The city council could not, by ordinance, legalize what the statute forbids, and the
The only question to be determined' is, did the defendant obstruct the highway with its train or cars for an unreasonable -time? It is a common-law proceeding, and is to be tried on common-law principles, without regard to the statute or the ordinance referred to (Illinois Central R. R. Co. v. Commonwealth, 20 R., 115, 45 S. W., 367), except that no obstruction for less than five minutes-is unlawful.
Petition overruled.