Allen v. State

• Decision Date: 01 January 1870
• Citation: 34 Tex. 230
• Parties: S. W. ALLEN AND OTHERS v. THE STATE.
• Court: Texas Supreme Court

34 Tex. 230

S. W. ALLEN AND OTHERS

v.THE STATE.

Supreme Court of Texas.

1870.

1. Article 2034, Pas. Dig., after specifying certain particular misdemeanors, provides in substance that any person who “shall do any other act or thing that would be deemed and held to be a nuisance at common law shall be guilty of a misdemeanor,” etc. Held, that there is no necessary repugnance between this provision and article 1605, which declares that “no person shall be punished for any act or omission as a penal offense, unless the same is expressly defined,” etc.

2. Under the clause of article 2034, above referred to, the proprietors of a tallow factory, who conduct that unwholesome and offensive business in or near a town or densely settled neighborhood, or on a public thoroughfare, are subject to be prosecuted and punished for a misdemeanor.

3. Four defendants were jointly indicted for misdemeanor in maintaining a nuisance. The proof on the trial showed that they were partners in the tallow factory which was the nuisance; and the jury returned as their verdict--“We the jury find the defendants guilty, and assess the punishment at two hundred and fifty dollars fine.” Held, that this was evidently a joint verdict against the partnership; and being a joint verdict it was erroneous, as there can be no partnership in crime.

4. On the verdict as above, the court below rendered judgment against each of the four defendants for two hundred and fifty dollars. Held, that such a judgment was not warranted or supported by the verdict; the judgment being several, while the verdict was joint.

APPEAL from Galveston. Tried below before the Hon. Samuel Dodge.

The tallow factory in question was “two or three miles west of Galveston,” according to the statement of facts; and was directly on the line of the Galveston, Houston and Henderson Railroad. Many witnesses were called on each side. Their olfactories did not agree very well.

Willie & Crosby, for the appellants, filed a very able brief. Its length precludes an entire insertion of it, and an attempt to condense it would mutilate it.

Wm. Alexander, Attorney General, for the state

OGDEN, J.

The indictment in this case is, in many respects, uncertain and indefinite, and to some extent obnoxious to the exceptions filed by the defendants. Yet we think there are acts charged against the defendants sufficient to constitute a misdemeanor under the statute, according to the plain import and construction of article 2034, Pas. Dig., and the evident and manifest intention of the legislature that passed the act. That article declares that if any person “shall do any act or thing that would be deemed and held to be a nuisance at common law, he shall be guilty of a misdemeanor.” This language is unequivocal and easy of definite ascertainment, and would seem to be as specific a description of one class of misdemeanors as could well be given in as few words. Is is true that every act which would constitute a nuisance at common law is not described in the statute, nor is every act that constitutes theft, or an assault, or swindling, particularly described in the statute, and yet it is believed our statute is specific enough to include every act which would constitute either of those offenses. But the counsel for the defendants claim that the statute under which the indictment is drawn violates the principles laid down in article 1605, Pas. Dig., and must therefore be declared null and void. It is hard to perceive the logic by which counsel arrive at this conclusion, as both articles were passed by the legislature at one and the same time, and in one and the same act; and it is difficult to see how one section of the same act should have the force and effect to annul and destroy another. But we are of the opinion that there is no necessity for declaring either inoperative or null on account of its conflict with the other.

The article under...