State v. Houck

73 Ind. 37 | Ind. | 1880

Worden, J.

— Prosecution by affidavit and information .against the appellees for a nuisance. Affidavit and information quashed on motion of defendants ; exception and appeal by the State.

The affidavit, which was substantially followed by the information, charged “That Thomas Houck and Leonidas Houck, on the 1st day of August, 1880, at said county of Henry and State aforesaid, did then and there unlawfully keep, continue and maintain a certain house, to wit, a ■slaughter-house, for the purpose of killing and slaughtering cattle, hogs and sheep, said house being then and there ■situated on the following tract of land in Henry county, to wit:” (description); “and that said Thomas Houck and Leonidas Houck, on the day and year, and at the place .aforesaid, and on divers other days and times between that ■day and the day of the filing of this affidavit, at the place •aforesaid, did then and there unlawfully, in and about said ■slaughter-house, put tripe, entrails, bones and offal of beasts, and did then and there, unlawfully and knowingly, permit and suffer said tripe, entrails, bones and offal of beasts, to be and remain in and about said slaughter-house so kept and maintained by them, the said Thomas Houck and Leonidas Houck, for a long period of time, to Avit, for the space of one hundred days thereafter ; by reason Avhereof, divers noisome, offensive and unwholesome smells and stenches Avere then and there emitted, so that the air for a. great distance around said tripe, entrails, bones and offal of beasts, to wit, for the distance of one-fourth of a mile,, was thereby greatly filled and impregnated with the said smells and stenches, and Avas rendered offensiAe, uncomfortable, unAvholesomo and noxious, to the great injury, annoyance and common nuisance of all the citizens of the State of Indiana then and there residing in the neighborhood of said slaughter-house, and to those passing and repassing said slaughter-house, and that said nuisance ought to be abated.”

In order that a nuisance shall amount to a criminal of-fence, it must be to the injury of some part of the citizens, of the State. 2 R. S. 1876, p. 460. And this fact should be made to appear by the affidavit and information, or the-indictment.

It may be observed that the description of the land on: which the slaughter-house Avas affirmed to have been situate,, does not indicate that it Avas in any public place, as upon a toAvn or city lot. Nor does it appear, by the affidavit, that, any one resided within the limits of the quarter of a mile, to which extent the air Avas contaminated. Persons may-have resided Avithin the neighborhood of the slaughter-house,, but not Avithin the quarter of a mile mentioned. The term, “neighborhood” is one of indefinite signification.

There is no direct affirmation in the affidavit, that the-slaughter-house was in any public place, if, from such statement, it could be inferred that it was injurious to some part of the citizens of the State ; nor is there any affirmation that any person resided Avithin the limits of -the extent to which: the air was contaiilinated ; nor that any person passed or re-passed the slaughter-house Avithin the limits indicated. In¡ short, no facts are stated to show that any part of the citizens of the State were injured.

The general conclusion, “to the great injury, annoyance and common nuisance of all the citizens of the State,” etc., does not supply the defect in the main body of the allegation. Mains v. The State, 42 Ind. 327.

The court below committed no error in quashing the affidavit and information.

The judgment below is affirmed.