Keefer v. State
| Decision Date | 12 October 1910 |
| Docket Number | No. 21,609.,21,609. |
| Parties | KEEFER v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Huntington County; Samuel E. Cook, Judge.
Henry Keefer was convicted of maintaining a nuisance, and he appeals. Affirmed.Lesh & Lesh, for appellant. James Bingham, Alexander G. Cavins, Edward M. White, and William H. Thompson, for the State.
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, and 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' Ann. St. 1908. 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 one hundred dollars.” 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, 169 Ind. 177, 181, 81 N. E. 913, 14 L. R. A. (N. S.) 172;Ledgerwood v. State, 134 Ind. 81, 89, 33 N. E. 631, and cases cited; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117. It has also been held that section 291, Burns' Ann. St. 1908, which reads as follows: “Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of the property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action”-may be looked to for that purpose. Hackney v. State, 8 Ind. 494;Moses v. State, 58 Ind. 185;Russell v. State, 32 Ind. App. 243, 245, 69 N. E. 482; Gillett's Criminal Law (2d Ed.) § 640. The term “public nuisance,” as used in the statutes providing a punishment for maintaining a public nuisance, has a well-defined legal meaning, and sufficiently designates the class of prohibited acts. Gillett's Criminal Law (2d Ed.) § 640; Burk v. State. 27 Ind. 430;State v. Tabler, 34 Ind. App. 393, 396, 397, 72 N. E. 1039, 107 Am. St. Rep. 256, and cases cited; Russell v. State, 32 Ind. App. 243, 245, 69 N. E. 482. As was said in State v. Tabler, 34 Ind. App. 393, 397, 72 N. E. 1039, 1040, 107 Am. St. Rep. 256, “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 said section 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 acts charged in the affidavit do not constitute a nuisance under any of the other sections of the statute. Accepting this contention as correct, it is only necessary to determine whether or not said acts constitute a nuisance under section 2440, supra. Blasting stone in quarries, and thereby casting rock upon the surrounding properties and highways, was indictable at common law as a nuisance. 1 Russell on Crimes (6th Ed.) 736; 1 Russell on Crimes (9th Am. Ed.) 438, 439; Regina v. Mutters L. & C. Crown Cases, 491, 10 Cox C. C. 6; 34 L. J. (M. C.) 22; Scott v. Firth, 4 F. & F. 349. See, also, Joyce on Nuisance, § 124; Wright v. Compton, 53 Ind. 337, and cases cited; People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433;Scott v. Bay, 3 Md. 431;Hay v. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279;Tremain v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284;St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258;Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274, and notes; Longtin v. Persell, 30 Mont. 306, 76 Pac. 699, 65 L. R. A. 655, and note, 104 Am. St. Rep. 723, and note; Graetz v. McKenzie, 9 Wash. 696, 35 Pac. 377;Central, etc., Co. v. Vanderheuk, 147 Ala. 546, 41 South. 145, 6 L. R. A. (N. S.) 570, 119 Am. St. Rep. 102.
It is also insisted by appellant that said “affidavit is so ambiguous, uncertain, and indefinite” that it is not sufficient upon any theory. It appears from the affidavit that appellant “unlawfully erected and maintained a stone quarry and place of blasting and shooting with dynamite, stone, and rock near, and by, the dwelling houses of divers inhabitants of said county and near certain public highways and streets along and through which divers inhabitants of such county and state were continually passing, and that he did then and there shoot dynamite and blast such stone and rock at and in said quarry causing noisome, loud,...
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Price v. State
... ... Smith (1726) 93 Eng.Rep. 795, 2 Strange 704 ... It may also be noted that the public nuisance category, while not involving "imminent violence" or "imminent breach of the peace", does carry with it the climate of public disorder. Thus in Keefer v. State (1910) 174 Ind. 588, 92 N.E. 656, blasting in a stone quarry which threw rocks and debris upon surrounding land resulted in affirmance of a public nuisance conviction. The holding was in large measure prompted by a definition of nuisance cast in terms of injury to health, offense to the ... ...
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Groover v. State, 29681
... ... * * * The only assignment of the appellant is that the court erred in overruling appellant's motion for a new trial. McCutcheon v. State, 1911, 176 Ind. 13, 93 N.E. 545; Keefer v. State, 1910, 174 Ind. 588, 92 N.E. 656 ... 'The attorneys for the appellant strenuously and ably insist that this court should disregard the time limit as prescribed by the statute in filing a motion for a new trial and consider the appeal on its merits. At common law there was no right to ... ...
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