State v. Boll

• Decision Date: 31 March 1875
• Citation: 59 Mo. 321
• Parties: STATE OF MISSOURI, Respondent, v. MATHEW BOLL, Appellant.
• Court: Missouri Supreme Court

59 Mo. 321

STATE OF MISSOURI, Respondent,

v.MATHEW BOLL, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from Court of Criminal Correction.

Jecko & Hospes, for Appellant.

I. The defendant is charged with an offense against the statute, and the facts alleged and proved against him are not within the statute. (Wagn. Stat., pp. 505, 506, §§ 41, 42, 43.)

II. The statutes having legislated on the whole subject must be taken as having repealed the common law.

III. There was not one of the material ingredients of a nuisance shown to exist in this case, and the defendant should have been acquitted.

L. & F. Gottschalk, for Respondent.

I. Every nuisance is indictable at common law, and if any manufactory, lawful in itself, is erected in any part of a town, where it cannot but greatly incommode the inhabitants and destroy their health, it is indictable as a nuisance. (1 Bish. Crim. Law, pp. 489, 490, § 1138; Smith vs. McConathy, 11 Mo., 517.)

II The mere fact that the information concludes against the statute is immaterial. (Wagn. Stat., p. 86, §§ 1, 2; p. 1090, § 27.)

III. The instructions asked by defendant were rightly refused. If any thing be a nuisance, it is no justification that defendant claims and proves that he did the best under the circumstances.

HOUGH, Judge, delivered the opinion of the court.

The defendant was found guilty and fined in the St. Louis Court of Criminal Correction, under an information against him, for maintaining a nuisance by keeping and conducting a dairy in the city of St. Louis, which emitted noxious and offensive exhalations and odors, to the annoyance of the neighborhood and the public. The information concluded, “contrary to the peace and dignity of the State, and to the form of the statute in such case made and provided.” A motion was made to quash the information for the reason that the facts charged constituted no offense, which was overruled and excepted to, and after verdict a motion in arrest was made for the same reason, which was also overruled and excepted to, and this action of the court is assigned as error. These motions, it is urged, should have been sustained for the reason that the information concluded against the form of the statute; whereas, the facts charged constituted no offense under any statute, and the defendant could not be proceeded against at common law, as the effect of the legislation in regard to nuisances, (Wagn. Stat., p. 505, §§ 41, 42, 43,) was to repeal the common law on that subject.

The law is against the defendant on both points. In the case of the State vs. Bray, (1 Mo., 180) the court say: “It is now clearly established that the words ‘against the form of the statute’ shall be rejected if the evidence be not sufficient to bring the offense charged within the...