State v. American Agr. Chemical Co.

• Decision Date: 27 February 1922
• Docket Number: 10832.
• Citation: 110 S.E. 800,118 S.C. 333
• Parties: STATE v. AMERICAN AGR. CHEMICAL CO.
• Court: South Carolina Supreme Court

110 S.E. 800

118 S.C. 333

STATE v. AMERICAN AGR. CHEMICAL CO.

No. 10832.

Supreme Court of South Carolina

February 27, 1922

Appeal from General Sessions Circuit Court of Lexington County; R W. Memminger, Judge.

The American Agricultural Chemical Company was convicted of causing to flow into a stream a substance poisonous to fish and appeals. Reversed and remanded.

Watts and Fraser, JJ., dissenting.

Lyles & Lyles, of Columbia, for appellant.

G. B Timmerman and T. C. Callison, Sols., both of Lexington, for the State.

COTHRAN J.

Indictment for violation of section 772 of the Criminal Code, making it a misdemeanor to "cause to flow into or be cast" into any of the inland streams of this state any substance poisonous to fish or destructive of their spawn. The defendant was convicted and sentenced to pay a fine of $500, and from judgment and sentence has appealed.

The testimony tended to establish the following facts:

The defendant is a corporation owning and operating a plant for the manufacture of fertilizers near the town of Cayce. The plant is located near a small stream that heads upon land above the defendant, passes through its land, and thence through the lands of others to Congaree river. Prior to a previous indictment of the defendant for a similar offense, which resulted in a mistrial, the defendant had collected the water of this stream at a point above its plant and conveyed it in a pipe to the plant. The water was used for a double purpose: First, by means of a coil of lead pipe, to cool the acid in the tanks and towers. This water in the cooling process did not come in contact with the acid, but, after passing through the cooling pipes, was conveyed by an iron pipe back to the stream on the defendant's premises. Second, this water however, was also used, occasionally, for washing out the acid tanks and towers, and thus became impregnated with a considerable amount of acid. It was ordinarily emptied into the acid tanks, where the reserve supply of acid was kept, but occasionally the tanks would overflow, and the excess would run off through the pipe carrying the cooling water, and be conveyed to the stream, where damage to fish was inflicted. After the prosecution referred to, the defendant dug three pools, into which the overflow from the acid tanks was emptied through a pipe laid very near to and parallel with the pipe which conveyed the innocuous cooling water; both pipes were laid in cement and separated from each other by cement. During the year 1920, shortly before the prosecution was instituted, the defendant made extensive repairs upon its plant, after which complaints were received that some poisonous substance was escaping into the stream and killing the fish. Upon investigation the defendant ascertained that a heavy steel beam, which had been used in the repairs, had fallen from a scaffold and had broken the cement separating the two pipes; that the pipe carrying the water impregnated with the acid had been corroded by the acid, and that the breaking of the cement had also broken the pipe and allowed the nocuous water to find its way into the other pipe which was similarly shattered. As soon as the discovery was made the defects were remedied, a new noncorrosive pipe was installed, and no further ground of complaint appeared. There was abundant evidence tending to show--in fact, it appears to have been conceded by the defendant--that the water in the stream became contaminated with the acid from the defendant's plant, and that it was destructive to fish life.

The contention of the defendant is that the escape of the nocuous water was accidental, without negligence or design on its part, and does not constitute a crime under the section invoked by the state. It requested the presiding judge to charge the jury:

"That the statute in question makes the intention of the party charged with the commission of the offense in causing poisonous substance to flow into the stream an essential part of the offense. Unless the jury can find that the substance in question was intentionally caused to flow into the stream and that it was not merely an accident, they must find 'Not guilty.' "

To this request the presiding judge responded:

"I have already charged you that that is not the law."

Other questions are involved in the appeal, but, as the refusal of this request was erroneous and demands a reversal of the judgment, our consideration will be confined to it.

Section 772 of the Criminal Code is as follows:

"Should any person or persons cause to flow into or be cast into any of the creeks, streams, or inland waters of this State, any impurities that are poisonous to fish or destructive to their spawn, such person or persons shall, upon conviction thereof, be punished with a fine of not less than five hundred dollars, or imprisonment of not less than six months in the county jail; the fine to go one-half to the informer and the other half to the County."

In offenses at common law, and under statutes which do not disclose a contrary legislative purpose, to constitute a crime, the act must be accompanied by a criminal intent, or by such negligence or indifference to a duty or to consequences as is regarded by the law as equivalent to a criminal intent. The statute, however, may forbid the doing of an act, and make its commission a crime, regardless of the intent or knowledge of the doer, and, if such legislative intention appears, the court must give it effect, although the intent of the doer may have been innocent. 16 C.J. 74, 76; State v. Reeder, 36 S.C. 497, 15 S.E. 544; State v. Assmann, 46 S.C. 564, 24 S.E. 673; State v. Westmoreland, 76 S.C. 145, 56 S.E. 673, 8 L. R. A. (N. S.) 842.

This principle must not be confounded with or deemed decisive of the very distinct inquiry whether or not the accused has in fact exercised his personal volition or been negligent in committing the offense with which he may be charged. His act may in a remote sense be said to have caused, brought about, the result complained of, but in reason he cannot be held criminally responsible, unless his act was accompanied either by positive volition on his part, or by negligence equivalent in law thereto. If the act was an accident, which presupposes that both volition and negligence were absent, there is no basis for criminal responsibility.

In the statutory offenses where the state is not required to prove a criminal intent on the part of the accused it is assumed, as fully appears, that the act was one of volition, and the defense that he did not intend to commit an unlawful act is not open to him.

If one should do an act intentionally, the act is the result of his personal volition; and, if it should be an act prohibited by statute, he will not be heard to say that he did not intend to commit a crime in so doing. But, if it occurred by accident, his volition could not have preceded the act, and both the intention to do the act and the intention to commit a crime are necessarily absent. To constitute a crime the personal volition or negligence of the actor preceding the act is essential. Whether or not the exculpatory defense...