Paragon Paper Company v. The State
| Decision Date | 23 February 1898 |
| Docket Number | 1,737 |
| Parties | PARAGON PAPER COMPANY v. THE STATE |
| Court | Indiana Appellate Court |
From the Delaware Circuit Court.
Reversed.
John Cantwell, S.W. Cantwell, L. B. Simmons, J. W. Ryan, W. A Thompson, W. H. H. Miller, J. B. Elam and F. Winter, for appellant.
W. A Ketcham, Attorney-General, Merrill Moores, J. A. Hindman, A E. Dickey, W. M. Aydelotte and Baker & Daniels, for State.
Appellant, a corporation, was prosecuted by affidavit and information for polluting the waters of the Mississinewa river with refuse from its factory. A trial resulted in a verdict of guilty and a fine of five hundred dollars. The errors assigned are the overruling of appellant's motion to set aside and suppress the summons and return, its motions to quash the affidavit and information, and its motion for a new trial. A summons and a copy of the information were served upon appellant. There was a special appearance and motion by appellant to set aside the summons and copy of the information and service thereof, which motion was overruled. It is argued by counsel that the term information as used in section 1754, Burns' R. S. 1894, means the information and the affidavit upon which it is based, and that appellant should have been served with a copy of the information and the affidavit. Section 1754, supra, provides that "Such summons, together with a copy of the indictment or information, shall be served and returned in the manner provided for the service of summons upon such corporation in civil actions." The position maintained by counsel derives its principal strength, perhaps, from the concluding part of this section, which provides that, "The corporation, on or before the return day of a summons duly served, may appear by one of its officers, or by counsel, and answer to the indictment or information by motion or plea; and upon its failure to make such appearance and answer, the clerk shall enter a plea of 'not guilty'; and upon such appearance being made or plea entered, the corporation shall be deemed, thenceforth, continuously present in court until the case is finally disposed of." It is true that, if an affidavit is defective, both the information and the affidavit must fall before a motion to quash; and, in determining the sufficiency of the information, the court must look to both the affidavit and information. Under the criminal code, an information is the Section 1747, Burns' R. S. 1894. It must set forth the act charged as an offense. Section 1802, Burns' R. S. 1894. But the language used in various statutes makes it clear that the words "affidavit" and "information" are not included in the word "information." Thus, the affidavit and information may both be amended, and, when the affidavit is amended, it shall be done before the defendant pleads, and be verified; but the information may be amended at any time before or on the trial to conform to the affidavit. Section 1804, Burns' R. S. 1894. A defendant may move to quash an information when it appears, upon the face thereof that the facts stated in the information do not constitute a public offense, or that the information does not state the offense with sufficient certainty. Section 1828, Burns' R. S. 1894.
We think it clear that the information and the affidavit are separate and distinct entities. We see no reason for extending the meaning of the word "information" as used in the section. The service of a copy of the affidavit upon the corporation could have no greater effect than to notify the corporation of the nature of the offense with which it is charged, and, as the information must set forth the act charged as an offense, it fulfills that purpose. In the absence of some sufficient reason or authority, we are unwilling to say that the intention of the legislature in section 1754, supra, was that a copy of both the affidavit and information should be served on the corporation. We see no reason for extending the statute to cover what was manifestly not intended to be covered, and which is not necessary to prevent the defendant's rights from being prejudiced. See Rice v. State, 15 Ind.App. 427, 44 N.E. 319.
In the case of Lindsey v. State, 72 Ind. 39, cited by appellant's counsel, the appellant was prosecuted upon an affidavit and information for a felony. The affidavit failed to state that appellant was in custody on the charge for which he was prosecuted, and that the grand jury was not in session. The information contained these averments. A motion in arrest of judgment, based upon the alleged insufficiency of the affidavit, was overruled. The statutory causes for arrest of judgment were that the grand jury which found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court, and that the facts stated do not constitute a public offense. It was held that, under that particular statute, the affidavit and information constitute "in a certain generic sense," the indictment, and that the judgment may be arrested for the want of any material jurisdictional averment either in the affidavit or information. And in the case of Hoover v. State, 110 Ind. 349, 11 N.E. 434, it is held that the affidavit and information take the place of an indictment, and are, "in a certain generic sense," the indictment, but the case recognizes the affidavit and information as distinct entities. The motion to set aside the summons and service was properly overruled.
This prosecution was based on section 2154, Burns' R. S. 1894, which reads as follows: "Whoever erects, continues, uses or maintains any building, structure, or place for the exercise of any trade, employment, or business, or for the keeping or feeding of any animal, which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or the public; or 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; or obstructs or impedes, without legal authority, the passage of any navigable river, harbor or collection of waters; or unlawfully diverts any stream of water from its natural course or state, to the injury of others; or obstructs or encumbers, by fences, buildings, structures, or otherwise, any public grounds; or erects, continues, or maintains any obstruction to the full use of property, so as to injure the property of another or essentially to interfere with the comfortable enjoyment of life, shall be fined not more than five hundred dollars nor less than ten dollars: Provided, That nothing in this section shall prevent the board of trustees of towns and the common councils of cities, from enacting and enforcing such ordinances within their respective corporate limits as they may deem necessary to protect the public health and comfort."
Counsel for appellant earnestly insist that a corporation is not indictable under the above section, and that a corporation is only indictable by force of section 1970, Burns' R. S. 1894, which provides, that "Corporations may be prosecuted by indictment or information, for erecting, continuing, or maintaining a public nuisance, or for obstructing a public highway or a navigable stream," and that if appellant was amenable to punishment for the acts charged it is by virtue of section 2153, Burns' R. S. 1894, which 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 be fined not exceeding one hundred dollars."
It is insisted on behalf of the State, that a corporation may be prosecuted under section 2154, supra, and is amenable to the punishment therein provided, and that it is sufficiently charged in the affidavit to bring the offense in question within the first and second clauses of that section.
As appellant is not charged with having obstructed a public highway or a navigable stream, the prosecution can be maintained only upon the ground that the acts charged constitute a public nuisance. It is only by virtue of section 1970, supra, that a corporation is liable for a criminal prosecution. Section 290, Burns' R. S. 1894, provides that "Whatever is injurious to 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." While the above statute, in the definition of a "nuisance," has not indicated any distinction between public and private nuisances, yet a distinction is made in the adjudged cases. Thus it has been held that a right to maintain a strictly private nuisance upon the land of another may be acquired by prescription; but a right to maintain a public nuisance cannot be acquired by prescription. Sherlock v. Louisville, etc., R. W. Co. 115 Ind. 22, 17 N.E. 171. In State v. Taylor, 29 Ind. 517, it is held that our statute gives as accurate a definition of the term "nuisance" as understood at common law as can be found elsewhere, and after quoting the statute defining a nuisance the court said: "If the injury were limited to an individual, it gave a private right of action; if it affected the public, it was the subject of a public prosecution."
It is argued that the legislature has declared the offenses enumerated in section 2154 to be public...
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