93 N.W. 746 (Neb. 1903), 13,006, State v. De Wolfe

Docket Nº:13,006
Citation:93 N.W. 746, 67 Neb. 321
Opinion Judge:SULLIVAN, C. J.
Party Name:STATE OF NEBRASKA v. W. W. DE WOLFE
Attorney:James L. Caldwell, County Attorney, William T. Stevens and Loren E. Winslow, for the state. William M. Morning and Charles A. Morning, contra.
Case Date:February 04, 1903
Court:Supreme Court of Nebraska
 
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Page 746

93 N.W. 746 (Neb. 1903)

67 Neb. 321

STATE OF NEBRASKA

v.

W. W. DE WOLFE

No. 13,006

Supreme Court of Nebraska

February 4, 1903

WRIT of error, on behalf of the state, from the district court for Lancaster county. The defendant was indicted for maintaining a nuisance. A demurrer to the information was sustained. Heard below before HOLMES, J. The county attorney excepted and brought error to this court. Exceptions sustained.

EXCEPTIONS SUSTAINED.

James L. Caldwell, County Attorney, William T. Stevens and Loren E. Winslow, for the state.

William M. Morning and Charles A. Morning, contra.

OPINION

[67 Neb. 322] SULLIVAN, C. J.

De Wolfe was charged in the district court for Lancaster county with having unlawfully exposed the citizens of the villiage of Bennett to a contagious disease by negligently keeping an infected person in a public place. The defendant demurred to the information, and the court, being of opinion that the facts alleged did not constitute a crime, dismissed the prosecution. The county attorney excepted to the decision and by this proceeding challenges its correctness.

The ground of the decision is thus stated in the judgment dismissing the action: "The Code particularly sets forth what acts shall be deemed a nuisance, and provides a penalty therefor, and failing to specify the acts complained of, no prosecution can be maintained therefor." The question, then, to be considered, is whether common-law nuisances which have not been enumerated in the Criminal Code are punishable as crimes. In this state all public offenses are statutory; no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law. Criminal Code, sec. 251; Wagner v. State, [67 Neb. 323] 43 Neb. 1; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355; Estes v. Carter, 10 Iowa 400. But while there are in this state no common-law crimes, the definition of an act which is forbidden by the statute, but not defined by it, may be ascertained by reference to the common law. Smith v. State, supra; Mitchell v. State, 42 Ohio St. 383, 385; State v. Twogood, 7 Iowa 252; Estes v. Carter, supra; Pitcher v. People, 16 Mich. 142; Prindle v. State, 31 Tex. Crim. 551, 21 S.W. 360. A statute declaring all common nuisances to be...

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