Dennis v. State

• Decision Date: 07 November 1883
• Docket Number: 11,085
• Citation: 91 Ind. 291
• Parties: Dennis et al. v. The State
• Court: Indiana Supreme Court

91 Ind. 291

Dennis et al. v. The State

No. 11,085

Supreme Court of Indiana

November 7, 1883

From the Hancock Circuit Court.

The judgment is reversed, and the cause is remanded for a new trial.

E Marsh, W. W. Cook, W. H. Martin, J. A. New and J. W. Jones for appellants.

F. T Hord, Attorney General, L. P. Newby, Prosecuting Attorney and W. B. Hord, for the State.

OPINION

Howk, J.

In this case John Dennis and James Coffield were jointly prosecuted, tried and convicted, upon affidavit and information, for maintaining and causing to be maintained a public nuisance. From the judgment of conviction, they have appealed to this court, and have here assigned a number of errors; but, as the only questions discussed by their counsel arise under the alleged error of the court in overruling their motion for a new trial, the other errors assigned must be regarded as waived, and therefore are not considered.

Appellants' counsel first insist that the trial court erred in giving the jury the following instruction: "If the defendants maintained a slaughter-house, as charged in the affidavit and information, and allowed and permitted offal of cattle and other animals slaughtered there, if any, to there accumulate as alleged in the information, and noisome and offensive smells were then and there emitted therefrom, which blended with noisome smells emanating from another slaughter-house and a deposit of filth in the vicinity of said slaughter-house, if any, and rendered the air impure or unhealthful, to the injury of the persons named in the information, as therein alleged, the defendants would be liable, and the fact that such other slaughter-house and deposit of filth existed, and exhaled such noisome smells, if such is the fact, would not justify or excuse the wrongful act of the defendants, if provable."

Of this instruction appellants' counsel say: "This charge in effect declares to the jury that the defendants are guilty, if they maintained a slaughter-house, as charged, and suffered and permitted offal to remain and collect thereabouts, and noisome and offensive smells were emitted therefrom, although insufficient to injure or damage either person or property; yet, if this smell, blended with the noisome and offensive smells emanating from another slaughter-house and a deposit of filth in the vicinity of such slaughter-house, rendered the air impure or unhealthful, to the injury of the persons named in the information, then and in such case the defendants are guilty."

The charge is not fairly susceptible, we think, of the construction which counsel place upon it. Fairly construed the instruction told the jury that, if the defendants allowed the offal of cattle and other slaughtered animals to accumulate at their slaughter-house, as charged in the information, from which noisome and offensive smells were emitted, which rendered the air impure or unhealthful, to the injury of the persons named in the information, the defendants would be liable, even if the fact were that such noisome and offensive smells were blended with like smells emanating from another slaughter-house and a deposit of filth in its vicinity, and that such fact would not justify or excuse the wrongful act of the defendants, if such act were provable. The fact, if it were the fact, that the proprietors of another slaughter-house, in the vicinage, were guilty of a like offence with the defendants, can not constitute a defence in a prosecution against the defendants only; and...