47 W. Va. 789 | W. Va. | 1900
Mitchell was fined by the circuit court of Braxton County and brings his case to this Court. The indictment charges that he “did knowingly, willfully, and unlawfully throw and cause to be thrown into a certain brook and branch of running water (describing the brook or branch), the said brouk and branch then and there being used for domestic purposes, putrid, nauseous, and offensive substance, to wit, sawdust, and the offal and refuse from a certain sawmill, and other putrid, nauseous, and offensive substance.” Should the demurrer to the indictment have been sustained? Does it charge an indictable
But, if I be wrong in this, the evidence shows no offense. It does not show that this brook was used for domestic purposes. The fact that the statute uses the words, “well, cistern and spring,” in immediate connection with “brook or branch,” indicates that the legislature meant that the brook must be used for household purposes, and it is not shown that it was so used. And, furthermore, the evidence does not prove that sawdust is putrid, nauseous, or offensive. The most the evidence does show is that in rime of drought the sawdust discolors and produces an apparent ooze, not in that brook, but in Wolf creek, and that cattle sometimes would not drink the water in that creek. Now, the statute does not punish for throwing into a brook things that, by consequence, foul a creek into which it runs. That is not the offense created by the statute. As said above, there is no statute denouncing as a crime the act of throwing sawdust into a creek, or of fouling the water of a creek by sawdust, though section 20c makes it a crime to foul a creek by the deposit in it of other things. Therefore, I think, the motion for a new trial should have been sustained. Judgment reversed, verdict set aside, demurrer sustained, and indictment quashed.
Reversed.