Com. v. Louisville & N.R. Co.

• Decision Date: 19 September 1895
• Citation: 32 S.W. 136
• Parties: COMMONWEALTH v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

32 S.W. 136

COMMONWEALTH v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

September 19, 1895

Appeal from circuit court, Hardin county.

"Not to be officially reported."

An indictment against the Louisville & Nashville Railroad Company was quashed, and the commonwealth appeals. Affirmed.

Wm. J. Hendrick, for the Commonwealth.

W. H. Marriott, Wm. Lindsay, and H. W. Bruce, for appellee.

HAZELRIGG, J.

The indictment charges the appellee with maintaining a common nuisance, in that it so operated, in close proximity to a street and public highway in the town of Elizabethtown, a water tank, that water overflowed continuously, with a roaring noise, while filling the locomotive engine, and in suffering its locomotive engines to continuously stand at the tank and make loud buzzing noises, and send forth vapor, smoke, and steam therefrom, thereby obstructing the street and interfering with the travel thereon. This indictment was filed with the clerk of the Hardin circuit court by the foreman of the grand jury, in the presence of all the members thereof. It does not appear from the record to have been presented to the court, or to have been indorsed, "A true bill," and the indorsement signed by the foreman. For these reasons, it is insisted by counsel for the appellee, a demurrer was properly sustained, and the indictment quashed. In this we concur. Section 119, Cr. Code, requires such an indorsement and presentation, and this court in Oliver v. Com., 95 Ky. 372, 25 S.W. 600, said: "The provision of the Code supra is mandatory,-not merely directory,-that the indictment shall be 'endorsed a true bill and signed by the foreman,' which indorsement is the only legal and competent evidence that the paper filed is an indictment legally found. *** It is not a valid indictment, and it should have been dismissed upon demurrer." See, also, Pence v. Com., 95 Ky. 618, 26 S.W. 810; Patterson v. Com., 86 Ky. 313, 5 S.W. 387. Whether or not the indictment is objectionable because it charges two distinct offenses, as contended by counsel, is a question we need not inquire into. Judgment affirmed.