21 Ind. App. 157 | Ind. Ct. App. | 1897
The appellee was indicted in the Miami Circuit Court for maintaining a public nuisance. The venue was changed to the Cass Circuit Court, where a motion was made to quash each count of the indictment. The motion was overruled as to the first, and sustained as to the second count. The State excepted to the ruling of the court in sustaining the motion to quash the second count, and thereupon the prosecuting attorney entered a nolle prosequi, as to the first.
Appellant has assigned as error, the sustaining of appellee’s motion to quash the second count of the indictment, and that is the only question presented by this appeal. The second count of the indictment, omitting the formal parts, is as follows: “That Paul Herring on the 10th day of August, 1895, at the county of Miami and state of Indiana, did then and there unlawfully cause and suffer certain offal, filth, and noisome substances, the exact composition of which is to this grand jury unknown, to be collected and
Counsel for the State assert that the indictment is based upon the provisions of section 2154, Burns’ R. S. 1894 (2066, Horner’s R. S. 189i7), which is as follows: “Whoever erects, continues, uses or maintains any building, structure, or place for the exercise of any trade, employment, or business, or for the keeping or feeding of any animal, which by occasioning noxious exhalations or noisome and offensive smells, becomes injurious to the health, comfort, or property of individuals or the public; or causes or suffers any offal, filth or noisome substance to be collected or to remain in any place, to the damage or prejudice of others or the public; or obstructs or impedes, without legal authority, the passage of any navigable river, harbor or collection of waters; or unlawfully diverts any stream of water from its natural course or state, to the injury of others; or obstructs or incumbers, by fences, buildings, structures, or otherwise, any public grounds; or erects, continues,, or maintains any obstruction to the full use of property, so as to injure the property of another or to essentially interfere with the comfortable enjoyment of life, shall be fined, etc.”
Counsel, both for the appellant and appellee have
Counsel for appellant, in their brief say: “It certainly requires no violent stretch of the imagination to conceive of many cases where sewage might be discharged into a stream of water in one county, and produce no offensive or injurious effect in that county, but might produce such effect lower down the stream, in an adjoining county, * * * as, in this case, the water of the river is used for drinking and domestic purposes by the entire population of a city of eight or ten thousand inhabitants in the lower county, but is put to no such use in the county of Wabash. We take it that the fact that the water-works system of the city of Peru draws its water supply from the Wabash river would be a circumstance sufficient to render that an action
This brings us to the sole and only question: Where an act is done in one connty, from which injurious effects follow in another county, and such effects constitute an offense under the statute, will a prosecution lie in the latter county? Or, in other words, could the offender be prosecuted in either county? We must keep in mind that this is a prosecution for committing and maintaining a nuisance. Our statute has defined a nuisance as follows: “Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Section 290, Burns’ R; S. 1891 (289, Horner’s R? S. 1897). From this definition, the averments of the indictment clearly charge the commission of a nuisance. The cause which produced
It would seem that under the provisions of section 1649, Burns’ R. S. 1894 (1580, Horner’s R. S. 1897), in such case the jurisdiction would be in either county. In Archer v. State, 106 Ind. 426, it was held that where there was a conspiracy to commit murder in one county, and the victim was seized in such county, and taken into another, and killed, the jurisdiction was in either county. Mr. Bishop, in his work on Criminal Law (7th ed.), section 116, says: “In reason and according to the better authorities, when a crime is really committed a part in one country and part in another, the tribunals in either may properly punish it; provided that what is done in the country which takes jurisdiction is a substantial act of wrong, and not merely some incidental thing, innocent in itself.” In Archer v. State, supra, the court said: “There was not only preparation in Martin county to commit the specific crime finally consummated in Orange, but there was an overt act forming a material part of the crime committed in the former county, and the parties would be indictable at common law in that county. * * * The acts done by the appellant and his associates were, we repeat, a part of the crime; they were material, and they were substantial wrongs, so that it would seem that, at common law, jurisdiction would vest in the county where those acts were committed. We are not, however, to decide this case upon the rules of the common law, but upon the provisions of our statute, which reads thus: ‘When a public offense has been committed partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the
It seems to us that upon the authorities cited, and the principles therein declared, the question now before us is very easy of solution. The indictment charges that the appellee in the county of
It clearly appears from the indictment, that the initial step, or element in the offense charged against appellee, was committed in Wabash county, by discharging into the Wabash river, in said county, the filthy and noisome substance named. He then suffered it to be carried down the river by the current, and permitted it to be collected and remain in Miami county to the damage and prejudice of the public. Under this charge, we must hold that discharging the offensive substarice into the river in Wabash county, was an essential part of the crime, and as “an act requisite to its consummation,” without which, the offense could not have occurred. Hence it comes within the provision of section 1649, Burns’ R. S. 1894 (1580, Horner’s R. S. 1897), and may be punished in the county where it had its origin, or in the county