State v. Decker

• Decision Date: 16 January 1923
• Docket Number: No. 34799.,34799.
• Citation: 191 N.W. 359
• Parties: STATE v. JACOB E. DECKER & SONS.
• Court: Iowa Supreme Court

191 N.W. 359

STATE

v.JACOB E. DECKER & SONS.^a1

No. 34799.

Supreme Court of Iowa.

Jan. 16, 1923.

Appeal from District Court, Cerro Gordo County; J. J. Clark, Judge.

The defendant, a corporation, was convicted of the crime of nuisance, and appeals. The material facts are stated in the opinion. Affirmed.Blythe, Markley, Rule & Smith, of Mason City, for appellant.

Ben J. Gibson, Atty. Gen., and W. P. Butler, Co. Atty., of Mason City, for the State.

STEVENS, J.

The indictment charges that--

The defendant, a corporation, “did wrongfully and unlawfully commit, place, deposit, discharge and turn into, and cause to be committed, placed, deposited, discharged and run into a certain creek and stream of water situated in said county, known as ‘Lime creek,’ through a sewer which runs from the defendant's packing plant in the city of Mason City in said county, and empties directly into the said Lime creek, quantities of sewerage, fifth, offal, acids, and other poisonous substances, to the grand jury unknown; that by reason of the emptying of said sewer into the said Lime creek in said county, as aforesaid, in violation of law, and the committing, placing, depositing, discharging and running into said stream, through said sewer, quantities of filth, offal, acids and other poisonous substances, in said unlawful manner by the said defendant, Jacob E. Decker & Sons, the waters of said Lime creek in said county, at the time aforesaid, became and were polluted, corrupted and rendered unwholesome and impure, and by reason of said pollution and corruption of said stream in the manner aforesaid noxious exhalations, offensive odors and other annoyances were occasioned, all of which being injurious and dangerous to the public health, comfort and property, and contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Iowa.”

A demurrer to the indictment was overruled by the court, and this ruling is complained of by appellant. Appellant owns and operates a packing plant in Mason City, and the evidence shows had, for a considerable time, discharged quantities of filth and offal through a sewer into Lime creek, a nearby stream, causing offensive odors and resulting in the pollution of the water to such an extent as that the jury may well have found that it caused the death of large quantities of fish. The indictment is based upon section 5078 of the Code, which, so far as material to this controversy, is as follows:

“The erecting, continuing or using any building or other place for the exercise of any trade, employment or manufacture, which, by occasioning noxious exhalations, offensive smells or other annoyances, becomes injurious and dangerous to the health, comfort or property of individuals or the public; the causing or suffering any offal, filth or noisome substance to be collected or to remain in any place to the prejudice of others; the obstructing or impeding without legal authority the passage of any navigable river, harbor or collection of water; or the corrupting or rendering unwholesome or impure water of any river, stream or pond, or unlawfully diverting the same from its natural course or state, to the injury or prejudice of others. * * *”

[1][2] Appellant's principal contention is that the indictment is fatally defective, in that it does not affirmatively and in terms charge a public nuisance, or that the acts charged were “to the injury or prejudice of others” in the language of the statute. The indictment does not adopt the exact language of the statute. This, of course, is not necessary. Equivalent language is sufficient. Section 5289 of the Code provides that if the offense charged in the indictment “is stated in ordinary and concise language, with such certainty and in such manner as to enable a person of common understanding to know what is intended, and the court to pronounce judgment according to law upon a conviction,” it is sufficient. Section 5290 further provides that no indictment shall be held insufficient because of the omission of any matter “which was formerly deemed a defect or imperfection but which does not tend to prejudice the substantial rights of the defendant upon the merits.” State v. Martin, 125 Iowa, 715, 101 N. W. 637;State v. Dickerhoff, 127 Iowa, 404, 103 N. W. 350;State v. Waite, 101 Iowa, 377, 70 N. W. 596. Nothing must, however, be left to intendment or implication. State v. Clark, 141 Iowa, 297, 119 N. W. 719. Tested by these standards, is the indictment in this case fatally defective?

[3][4] The words “to the injury or prejudice of others” are not found in the indictment, but it is charged therein that by reason of said pollution and corruption of the stream “noxious exhalations, offensive odors and other annoyances were occasioned, all of which being injurious and dangerous to the public health, comfort and property.” A nuisance “is public when it affects the rights of citizens as a part of the public, that is, rights to which every citizen is entitled.” State v. Railway, 166 Iowa, 494, 147 N. W. 874. The phrase “to the prejudice of others” contemplates an offense which affects individuals residing, or being within the vicinity of the acts or conditions complained of and who are a part of the public in such sense as to distinguish the acts of the accused from other acts amounting only to a private nuisance and not subject to indictment under section 5078, supra. The acts or conditions constituting a public nuisance ordinarily affect but a small fraction of the people of the state, but which are of the character forbidden by the statute and which affect enough citizens to constitute the public, within the meaning thereof. Acme Fertilizer Co. v. State, 34 Ind. App. 346, 72 N. E. 1037, 107 Am. St. Rep. 206. Are not the allegations of the indictment sufficiently certain and definite to “enable a person of common understanding to know what is intended”? The ultimate facts relied upon to constitute the offense are clearly and completely recited therein. Nothing is left to intendment or implication in this respect. Every fact essential to the preparation of a defense to the indictment is found therein. A person of common understanding could not have been deceived or misled as to what acts are complained of. In what way could the substantial rights of the appellant have been prejudiced upon a trial of the case upon the merits by the mere omission from the indictment of...