Keefer v. State, 21,609

• Docket Nº: 21,609
• Citation: 92 N.E. 656, 174 Ind. 588
• Case Date: October 12, 1910
• Court: Supreme Court of Indiana

92 N.E. 656

174 Ind. 588

Keefer
v.
The State of Indiana

No. 21,609

Supreme Court of Indiana

October 12, 1910

From Huntington Circuit Court; Samuel E. Cook, Judge.

Prosecution by The State of Indiana against Henry Keefer. From a judgment of conviction, defendant appeals.

Affirmed.

Lesh & Lesh, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and W. H. Thompson, for the State.

OPINION [92 N.E. 657]

[174 Ind. 589] Monks, C. J.

Appellant was convicted before a justice of the peace on an affidavit charging him with maintaining a nuisance, by blasting stone in his stone-quarry, thereby casting rock upon the surrounding properties and highways. He appealed to the court below, where he was again convicted.

Appellant first insists that the court erred in overruling his motion to quash the affidavit. Section 2440 Burns 1908, Acts 1905 p. 584, § 534, provides that "every person who shall erect, or continue and maintain any public nuisance, to the injury of any part of the citizens of this State, shall, on conviction, be fined not exceeding $ 100." While said section does not specifically define the crime of nuisance, the courts will define the crime by the aid of the common-law definitions and the import of the language used. Sopher v. State (1907), 169 Ind. 177, 181, 14 L.R.A. (N.S.) 172, 81 N.E. 913; Ledgerwood v. State (1893), 134 Ind. 81, 89, 33 N.E. 631, and cases cited; State v. Berdetta (1880), 73 Ind. 185, 38 Am. Rep. 117. It has also been held that § 291 Burns 1908, § 289 R. S. 1881, may be looked to for that purpose. Said section reads as follows: "Whatever is injurious to the health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action." Hackney v. State (1856), 8 Ind. 494; Moses v. State (1877), 58 Ind. 185; Russell v. State (1904), 32 Ind.App. 243, 245, 69 N.E. 482; Gillett, Crim. Law (2d ed.) § 640.

The term "public nuisance," as used in the statutes providing [174 Ind. 590] a punishment for maintaining a public nuisance, has a well-defined, legal meaning, and sufficiently designates the class of prohibited acts. Gillett, Crim. Law (2d ed.) § 640; Burk v. State (1867), 27 Ind. 430; State v. Tabler (1905), 34 Ind.App. 393, 396, 397, 107 Am. St. 256, 72 N.E. 1039, and cases cited; Russell v. State supra. It was said in the case of State v. Tabler, supra: "A nuisance is a public nuisance if it annoys such part of the public as necessarily comes in contact with it." It is evident that § 2440, supra, covers every case of nuisance within its provisions, except such as are specifically defined and provided for in other sections.

Appellant contends that the...