Com. v. Chesapeake & O. Ry. Co.

• Decision Date: 15 April 1908
• Citation: 110 S.W. 253,128 Ky. 749
• Parties: COMMONWEALTH v. CHESAPEAKE & O. RY. CO.
• Court: Kentucky Court of Appeals

110 S.W. 253

128 Ky. 749

COMMONWEALTH v. CHESAPEAKE & O. RY. CO.

Court of Appeals of Kentucky.

April 15, 1908

Appeal from Circuit Court, Clark County.

"To be officially reported."

An indictment was filed against the Chesapeake & Ohio Railway Company for creating a nuisance by permitting its trains to stand across a public street, and, from a judgment dismissing the indictment on demurrer, the commonwealth appeals. Reversed and remanded for further proceedings.

James Breathitt, Atty. Gen., Theo. B. Blakey, Asst. Atty. Gen., T B. McGregor, Chas. H. Morris, and B. A. Crutcher, for the Commonwealth.

D. L Pendleton, for appellee.

NUNN J.

This appeal is from a judgment sustaining a demurrer to and dismissing the following indictment (omitting the formal parts): "The grand jury of Clark county, in the name and by the authority of the commonwealth of Kentucky, accuse the Chesapeake & Ohio Railway Company of the offense of suffering a nuisance committed as follows, viz.: That said the Chesapeake & Ohio Railway Company on the 12th day of September, 1907, in the county aforesaid, and at a time other than mentioned in indictment No. 1 and within twelve months before the finding of this indictment, it, the said Chesapeake & Ohio Railway Company, being a corporation incorporated under the laws of the state of Virginia, and owning and operating a railroad in and through the county of Clark and the city of Winchester, in said county, did unlawfully and willfully suffer and permit its cars attached to passenger and freight trains belonging to said railway company to be placed on and across Main street, in the city of Winchester, Kentucky, it, the said Main street, being then a public highway, and did suffer and permit said cars to be and remain on and across said Main street for an unreasonable length of time, thereby obstructing said street, and rendering travel along said street dangerous and unsafe, to the common nuisance of all the citizens of the commonwealth of Kentucky, and especially to persons living on and in the neighborhood of said street and passing and repassing along same, against the peace and dignity of the commonwealth of Kentucky." The defendant (appellee) moved the court to require the commonwealth to make the indictment more definite so as to show the day and time of day, the character of train, and the direction in which the train was headed which obstructed Main street, as alleged therein. The court sustained this motion. The commonwealth's attorney filed a statement as follows: "The undersigned states that he is unable to give the time of the committing of the alleged nuisance as mentioned in indictment No. 2 against the Chesapeake & Ohio Railway Company more definite than that it was only three or four days before the 12th day of September 1907." The defendant (appellee) filed a demurrer to this statement, which the court sustained, and entered the following order: "The attorney for the commonwealth declines to make the statement more definite, and, the court being of the opinion that the defendant is entitled to a more definite statement in order to be able to defend this case it is now ordered that the indictment herein be dismissed, to which ruling the commonwealth objects and excepts, and prays an appeal to the Court of Appeals, which is granted." The only questions involved on this appeal are the sufficiency of the indictment, and whether the court, in its discretion, should have granted appellee's motion for a bill of particulars.

Section 124 of the Criminal Code of Practice provides: "The indictment must be direct and certain as regards: (1) The party charged. (2) The offense charged. (3) The county in which the offense was committed. (4) The particular circumstances of the offense charged, if they be necessary to constitute a complete offense." The indictment under consideration meets the requirement of this section. The party charged with committing the offense is specifically named; and it is charged that the defendant had suffered and permitted its cars to be and remain on and across Main street, and rendered the travel along the street dangerous to the common nuisance, etc. The offense was alleged to have been committed in Clark county and in the city of Winchester. There were no other circumstances necessary to be alleged to constitute a complete offense. The suffering and permitting cars to remain across Main street, which obstructed travel thereon, completed the offense. The commonwealth was not required to state in the indictment the particular day or the time of day, or the character of the train, or the direction in which the train was headed which obstructed the street. To require the commonwealth to allege and prove these particular facts and circumstances would in most cases relieve defendants from conviction for such offenses. The indictment in the case of the Louisville & Nashville R. R. Co. v. Commonwealth, 117 Ky. 350, 78 S.W. 124, 79 S.W. 275, was as follows: "The said Louisville & Nashville Railroad Company in the said county of Hopkins, on the 16th day of May, 1903, and on many other days before the finding of this indictment, did create, suffer, and maintain a common nuisance in the city of Earlington, Hopkins county, Kentucky, by placing and running railroad cars, flats, box cars, and steam engines, and making up trains and switching cars and changing cars unnecessarily and for unreasonable lengths of time in, on and across a public street and highway of said city of Earlington where the track and side track of said railroad company crosses said street or highway near said railroad company's depot in said...