Hochman v. State, 1 Div. 688

CourtAlabama Court of Appeals
Writing for the CourtPRICE
Citation38 Ala.App. 602,91 So.2d 495
PartiesM. HOCHMAN v. STATE.
Decision Date24 January 1956
Docket Number1 Div. 688

Page 495

91 So.2d 495
38 Ala.App. 602
M. HOCHMAN
v.
STATE.
1 Div. 688.
Court of Appeals of Alabama.
Jan. 24, 1956.
Rehearing Denied Feb. 21, 1956.
Affirmed After Remandment Oct. 16, 1956.
Rehearing Denied Nov. 13, 1956.

Page 496

[38 Ala.App. 603] Chas. Hoffman, Mobile, for appellant.

[38 Ala.App. 604] John Patterson, Atty. Gen., Robt. Straub and Wm. H. Sanders, Asst. Attys. Gen., for the State.

PRICE, Judge.

Appellant was convicted in the Inferior Criminal Court of Mobile County for the offense of maintaining a public nuisance. On appeal to the circuit court a complaint was filed by the Solicitor charging defendant with said offense. He was convicted in the circuit court and a fine of $500 was assessed against him by the jury.

The complaint charged:

'The State of Alabama by Carl M. Booth, Solicitor for the Thirteenth Judicial Circuit,

Page 497

(Mobile County), complains of M. Hochman that within twelve months before the commencement of this prosecution, he did keep on his premises at the intersection of Old U. S. Highway 90 and Lloyd's Road, in Mobile County, Alabama, automobile and airplane tires in such a manner as to make it a menace or likely to become a menace to the public health, contrary to law and in violation of Title 22, Section 75, of the 1940 Code of Alabama, against the peace and dignity of the State of Alabama.'

Defendant's demurrers to the complaint were overruled.

Section 75 of Title 22, Code 1940, provides, in pertinent part: 'The following things, conditions and acts, among others, are hereby declared to be public nuisances per se, menacing public health and unlawful: * * * (7) The conducting of a business, trade, industry, or occupation, or the doing of a thing, not inherently insanitary or a menace to public health in such a manner as to make it a menace or likely to become a menace to public health.'

[38 Ala.App. 605] In the recent case of Gayden v. State, Ala.App., 80 So.2d 495; Id., 262 Ala. 468, 80 So.2d 501, Presiding Judge Carr for our court and Mister Justice Simpson, speaking for the Supreme Court, reviewed and discussed practically every decision of our courts to the effect that every accused has the right to be informed of the crime with which he is charged and the acts constituting such crime in sufficient detail to enable him to make his defense and be protected in the event of double jeopardy, and that the general rule that an indictment or complaint is sufficient which substantially follows the language of the statute is not applicable where the statute creating the offense does not prescribe with particularity the constituent elements of the offense.

'Averments of mere conclusions are insufficient, and so where the thing complained of is not a per se nuisance the facts which make it such must be averred, and a mere averment that it is or will be a nuisance is not sufficient.' 29 Cyc. 1241.

The case of State v. Johnson, 26 N.M. 20, 188 P. 1109, 1110, was an action by the State to enjoin the defendant from the practice of medicine without having first obtained a license as required by law. The Supreme Court of New Mexico held:

'Examining the complaint, we find but one fact stated, viz. the practice of osteopathy or medicine without a license. The allegations that such practice is a nuisance, or is detrimental, dangerous, and injurious to the public health, are merely conclusions of the pleader. Practicing osteopathy or medicine without a license is not a nuisance per se.'

In the case of Ex parte Cohn, 37 Cal.App.2d 39, 98 P.2d 769, the complaint charged, in so far as is pertinent: "* * * the crime of violation of Section 373a, Penal Code (crime of) maintaining a Public Nuisance a Misdemeanor, was committed by Leon Cohn, who * * * did wilfully and unlawfully maintain a nuisance which was injurious to the health of the people living in the neighborhood and obstructing the free use of property, and which did interfere with the comfortable enjoyment of life and property of a considerable number of people, said nuisance being the maintenance of peacocks on those certain premises known as * * *."

The court said: 'It is elementary that in the circumstances facts must be alleged, and not conclusions. Obviously peacocks are not a nuisance per se. When and where it is contended that they constitute a nuisance in violation of section 373a of the Penal Code, facts in support of such contention...

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3 practice notes
  • Hochman v. State, 1 Div. 700
    • United States
    • Supreme Court of Alabama
    • December 21, 1956
    ...M. Hochman for writ of certiorari to the Court of Appeals to review and revise the decision of that court in the case of Hochman v. State, 91 So.2d 495. We have no alternative but to strike the petition because not presented on transcript paper as required by Revised Supreme Court Rule 32, ......
  • Huling v. State, 7 Div. 392
    • United States
    • Alabama Court of Appeals
    • October 16, 1956
    ...that the amount of land involved was 194 acres. Pretermitting a decision as to the materiality of the evidence sought by the question,[38 Ala.App. 602] we hold that the refusal to admit the proof in the first instance, if error, was rendered harmless to the accused by the subsequent disclos......
  • Mitchell v. State, 7 Div. 625
    • United States
    • Alabama Court of Appeals
    • March 7, 1961
    ...serve as collecting pools for breeding mosquitoes, is of a fact subsidiary to the keeping. The Hochman case reversed this court, 38 Ala.App. 602, 91 So.2d 495, an action which requires the consideration of the Supreme Court en banc. Certainly, that opinion so far as it explains the applicat......
3 cases
  • Hochman v. State, 1 Div. 700
    • United States
    • Supreme Court of Alabama
    • December 21, 1956
    ...M. Hochman for writ of certiorari to the Court of Appeals to review and revise the decision of that court in the case of Hochman v. State, 91 So.2d 495. We have no alternative but to strike the petition because not presented on transcript paper as required by Revised Supreme Court Rule 32, ......
  • Huling v. State, 7 Div. 392
    • United States
    • Alabama Court of Appeals
    • October 16, 1956
    ...that the amount of land involved was 194 acres. Pretermitting a decision as to the materiality of the evidence sought by the question,[38 Ala.App. 602] we hold that the refusal to admit the proof in the first instance, if error, was rendered harmless to the accused by the subsequent disclos......
  • Mitchell v. State, 7 Div. 625
    • United States
    • Alabama Court of Appeals
    • March 7, 1961
    ...serve as collecting pools for breeding mosquitoes, is of a fact subsidiary to the keeping. The Hochman case reversed this court, 38 Ala.App. 602, 91 So.2d 495, an action which requires the consideration of the Supreme Court en banc. Certainly, that opinion so far as it explains the applicat......

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