Mergentheim v. The State
| Decision Date | 07 October 1886 |
| Docket Number | 13,122 |
| Parties | Mergentheim v. The State |
| Court | Indiana Supreme Court |
From the Miami Circuit Court.
The judgment is affirmed, with costs.
R. P Effinger and R. J. Loveland, for appellant.
F. T Hord, Attorney General, C. R. Pence, Prosecuting Attorney and S.D. Carpenter, for the State.
At the June term, 1884, of the Miami Circuit Court, the grand jury of Miami county presented that Moses Oppenheimer, Harry W Strause and Lewis Mergentheim did, near the dwelling-houses of divers citizens, whose names are set out, unlawfully cause, procure, and permit large quantities of filth, dirty and impure water, suds, and other offensive substances, to be collected, and to remain near said dwelling-houses, by reason whereof divers offensive and unwholesome stenches and smells were emitted therefrom, so that the air was filled and impregnated with noisome smells and thereby rendered unwholesome to the citizens of said county.
Before the trial commenced the death of Oppenheimer was suggested upon the record; Strause was acquitted; whilst Mergentheim was found guilty, and a fine of twenty dollars assessed against him.
The first point made against the regularity of the proceedings is, that it is not shown by the record that the trial was had upon the indictment returned by the grand jury. This point is without merit. The record recites that an indictment, a copy of which is set out, was properly returned by a grand jury duly empanelled, the indictment being numbered 983. The subsequent proceedings, as the record shows, were had in cause numbered 460. They follow in regular order, and are shown to be proceedings on the indictment. That the number on the indictment and the number of the cause were different, is immaterial. It affirmatively appears that the indictment, set out in the transcript, was returned into court, and that the appellant appeared and pleaded to the indictment returned. The case is fully covered at this point by what was said in Wall v. State, 23 Ind. 150. See, also, Mathis v. State, 94 Ind. 562; Heath v. State, 101 Ind. 512; Epps v. State, 102 Ind. 539, 1 N.E. 491; Padgett v. State, 103 Ind. 550, 3 N.E. 377; Henning v. State, 106 Ind. 386, 6 N.E. 803.
The indictment is predicated upon section 2066, R. S. 1881. By this section the doing of any one of a number of distinct and separate acts is made a crime to which precisely the same punishment is affixed. In such a case, the doing of any one or more of the prohibited acts by the same person, at the same time, constitutes but a single offence, which may be charged in the same count of an indictment without rendering it subject to the infirmity of duplicity. Davis v. State, 100 Ind. 154; Fahnestock v. State, 102 Ind. 156, 1 N.E. 372.
The section referred to prescribes, among other things, that "Whoever * * * causes or suffers any offal, filth, or noisome substance to be collected or to remain in any place, to the damage or prejudice of others or the public," shall be subject, upon conviction, to certain penalties. The indictment charges the violation of this part of the section alone, but if it had combined conjunctively any or all of the other prohibited acts, and had charged that all such acts were done at the same time by the same persons, the objection that it was bad for duplicity, would not have been well made. The distinction between the case before us, and Knopf v. State, 84 Ind. 316, is apparent. In the case cited, a single count in the indictment charged offences prescribed in three separate sections of the statute, to each of which a different punishment was annexed.
It is said further that the indictment was bad, because it did not negative the exception contained in the proviso found in section 2066, which authorizes towns and cities to enact and enforce ordinances for the protection of the public health.
It is difficult to perceive how the acts charged could have been done in pursuance of any ordinance for the promotion of public health. At all events, if the defendants were acting under the power conferred by an ordinance, that was a proper matter to be shown in defence. State v. Maddox, 74 Ind. 105.
The indictment under examination charged that the defendants unlawfully caused, procured, permitted and suffered large quantities of filth, etc., to be collected and to remain, etc. It was not necessary, as the appellant contends, to describe with more particularity the means by which this was done. If the acts mentioned were unlawfully done, and were injurious to the property and health of others as charged, they constituted an indictable offence, irrespective of the business in which the defendants may have been engaged. Conceding that the business in which the defendants were engaged, and the locality and surroundings of the establishment in which it was conducted, were important elements in determining whether or not such business was so carried on as to constitute an offence, a description of the locality and business was not essential to the validity of the indictment.
A special answer was filed, to which a demurrer was sustained. While this ruling is assigned for error, nothing further is said concerning it, than that the facts stated in the plea or answer are incompatible with guilt on the part of the defendants. We are unable to perceive that any error was committed in sustaining the demurrer. The facts pleaded constituted no defence.
Gottlieb Conradt testified on behalf of the State. On cross-examination he was asked the following question: "Is'nt it a fact that you are indignant at the Jews in the city of Peru." Having previously been required to answer, as to the state of feeling existing between himself and the defendants, the court sustained an objection to the foregoing and other similar questions. In this there was no error. While it is not irrelevant to inquire of a witness, who has testified against a party, whether or not he entertains or has expressed feelings of hostility toward the party concerned, the record discloses that the rights of the appellant suffered no abridgment in that respect.
The indictment was returned in June, 1884. The defendants at the trial offered to prove that subsequent to that date, in 1885 no offensive odors were emitted from the canal into which the water from their woollen mills was discharged, and which, becoming stagnant, caused the odors complained of. They proposed in the same connection to prove that the odors emanating therefrom, from 1882 to 1885, were of the same character during the whole intervening period. This testimony...
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