Commonwealth v. T. J. Megibben Company

• Decision Date: 28 April 1897
• Citation: 101 Ky. 195
• Parties: Commonwealth v. T. J. Megibben Company.
• Court: Kentucky Court of Appeals

Page 195

101 Ky. 195

Commonwealth v. T. J. Megibben Company.

Court of Appeals of Kentucky.

April 28, 1897.

APPEAL FROM HARRISON CIRCUIT COURT.

W. S. TAYLOR AND J. T. SIMON FOR APPELLANT.

BLANTON & BERRY FOR APPELLEE.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment sustaining a demurrer to an indictment charging appellee with the offense of suffering, keeping and maintaining a nuisance, committed as follows, viz: "The said T. J. Megibben Co., a corporation called the T. J. Megibben Co., on the — day of September, 1895, in the county and State aforesaid, and before the finding of this indictment and on divers other days theretofore and thereafter to-wit: At least three hundred and sixty-five days, did unlawfully and willfully keep, suffer and maintain a nuisance, to-wit: Said defendant kept and maintained cattle pens, in which a great number of cattle and other animals were kept confined, and the excrements and droppings of said animals suffered to accumulate, as well as slop and other deleterious refuse matter to likewise accumulate, become obnoxious, offensive, putrid, impure, unhealthy and poisonous, corrupting the air, and the said matter so accumulated to flow into, pass into Woods run, a tributary of South Fork of Licking river, and thence into the said South Fork of Licking river, thereby rendering the water in said streams for a great distance impure, unhealthy, unwholesome, poisonous and unfit for man or beasts, and poisonous as to kill and injure fishes in said streams, as well as render the air unhealthy, noxious, impure and poisonous. The offense herein charged is the same offense charged in indictment No. 1014, filed in this honorable court on February 16, 1896. And to the common nuisance of all the good citizens. Against the peace and dignity of the Commonwealth of Kentucky."

The objections to this indictment urged by appellee in support of the judgment of the trial court are as follows: First, that the indictment attempts to charge two offenses, the killing of the fish, which is a statutory offense, and the corruption of the air. We do not think that the averment as to killing the fish necessarily makes the indictment duplex, as it is averred merely as one of the constituent elements going to make up the nuisance. As in the case of an indictment for the nuisance of keeping a disorderly house there are frequently alleged various statutory or common law offenses, such as gaming.

The second objection to the indictment is that it on its face shows that the offense charged was committed more than a year before the 14th day of September, 1896, when the indictment was returned, and, therefore, the statute of limitations is a bar to the prosecution. In this case we regard this objection as valid. It is not alleged that the offense was committed within twelve months next before the finding of the indictment, and, applying the rule fortius contra profentem, which applies more strongly in criminal than in civil cases, we must assume, that under the averments of the indictment, the offense might have been committed more than a year before the indictment was returned. "Unless an indictment for a misdemeanor is returned within twelve months after the commission of the offense the statute of limitations operates as a bar to the prosecution; therefore, time is a material ingredient in the offense, and if the indictment fails to allege that the offense was committed within twelve months before the finding of the indictment, and the date alleged shows that it was committed more than twelve months before the indictment was returned, a demurrer should be sustained." (Williams v. Commonwealth, 18 Ky. Law Rep., 667; Commonwealth v. Cain, 14 Bush, 525).

On the other hand, it is claimed on behalf of the Commonwealth that this prosecution was a continuous one, the indictment containing the statement that ...