State v. Dower

• Decision Date: 15 December 1908
• Citation: 114 S.W. 1104,134 Mo. App. 352
• Parties: STATE v. DOWER.
• Court: Missouri Court of Appeals

114 S.W. 1104

134 Mo. App. 352

STATE v. DOWER.

St. Louis Court of Appeals. Missouri.

December 15, 1908.

1. CRIMINAL LAW (§ 829) — TRIAL — INSTRUCTIONS — REFUSAL — MATTER COVERED.

An instruction covered by one given is properly refused.

2. CRIMINAL LAW (§ 1173) — HARMLESS ERROR — INSTRUCTIONS.

Where in a trial for discharging smoke into the open air, in violation of Ann. St. 1906, § 6208-19 (Laws 1901, p. 73, § 1), testimony that there was no difference in the smoke when anthracite or hard coal is burned, and that anthracite would not make as much smoke as bituminous coal, was stricken, it was not prejudicial error to refuse to instruct that defendant was not bound to use anthracite, instead of bituminous, coal, nor adopt any particular kind of fuel.

3. NUISANCE (§ 67) — SMOKE — PROSECUTION — DEFENSES.

Ann. St. 1906, § 6208-19 (Laws 1901, p. 73, § 1), making it a good defense to a prosecution for discharging dense smoke into the open air that there is no known practicable device, etc., by application of which to the building discharge of dense smoke could have been prevented, is not available to accused where he installs or unreasonably maintains boilers to which no smoke abatement appliances can be attached.

4. MUNICIPAL CORPORATIONS (§ 75) — LEGISLATIVE CONTROL — STATUTE SELF-OPERATING.

Ann. St. 1906, § 6208-19 (Laws 1901, p. 73, § 1), making it a misdemeanor to discharge dense smoke into the open air in certain cities, is self-operating, being unaffected by Ann. St. 1906, § 6208-20 (Laws 1901, p. 74, § 2), authorizing that such cities may enact ordinances not inconsistent with the act.

5. CRIMINAL LAW (§ 786) — TRIAL — INSTRUCTIONS — WITNESSES — CREDIBILITY OF DEFENDANT.

Under Rev. St. 1899, § 2637 (Ann. St. 1906, p. 1566), authorizing the fact that accused is the person on trial to be shown to affect his credibility, it is not error to instruct that in passing upon the weight to be given accused's testimony the jury may consider that he was the accused and his interest in the result.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

John Dower was convicted of violating Ann. St. 1906, § 6208-19 (Laws 1901, p. 73, § 1), by discharging dense smoke into the open air, and he appeals. Affirmed.

Leverett Bell, for appellant. Phillips W. Moss, for the State.

BLAND, P. J.

On January 18, 1908, an information was filed in the court of criminal correction, city of St. Louis, charging defendant with a violation of section 6208-19, Ann. St. 1906 (Laws 1901, p. 73), which reads as follows: "The emission or discharge into the open air of dense smoke within the corporate limits of cities of this state which now have or may have hereafter a population of one hundred thousand inhabitants is hereby declared to be a public nuisance. The owners, lessees, occupants, managers or agents of any building, establishments or premises from which dense smoke is so emitted or discharged, shall be deemed guilty of a misdemeanor, and upon conviction thereof, in any court of competent jurisdiction, shall pay a fine of not less than twenty-five dollars, nor more than one hundred dollars. And each and every day whereon such smoke shall be emitted or discharged shall constitute a separate offense; Provided, however, that in any suit or proceeding under this act, it shall be a good defense if the person charged with a violation thereof shall show to the satisfaction of the jury or court trying the facts, that there is no known practicable device, appliance, means or method by application of which to his building, establishment or premises the emission or discharge of the dense smoke complained of in that proceeding could have been prevented." Defendant entered a plea of not guilty to the information, and the issues were tried to a jury, resulting in a verdict of guilty. For the state the evidence tended to show that three witnesses visited the premises on January 16, 1908, and found "heavy, dense, dark smoke" being emitted from defendant's boilers in his building, in the city of St. Louis. For defendant, the evidence shows the heater from which the smoke was emitted was known as the "Capital" or "National" heater, and that there is no smoke abatement device which can be used on this heater; that smoke from this heater could only be abated by careful firing; and that defendant had in his employ a fireman of four years' experience. The evidence also tends to show that only one complaint had been made of the smoke.

The court gave the following instructions for the state: "(1) In this case the defendant stands charged by the information filed in this case, as owner of certain buildings and premises, situated in the city of St. Louis, with willfully (that is intentionally) suffering to be emitted and discharged from the smokestack or chimney of said buildings or premises dense smoke into the open air. To this charge he pleads `not guilty,' and it is for you to determine from all the evidence in the case his guilt or innocence, in connection with which the court instructs you as follows: If you believe and find from all the evidence in the case that in the city of St. Louis and state of Missouri, on the 16th day of January, 1908, the defendant, John Dower, was the owner of the building and premises at 1454 to 1464 Union avenue, St. Louis, Mo., in said city, and that as such owner he did willfully (that is intentionally) suffer or permit to be emitted and discharged from a smokestack or chimney of said building or premises dense smoke into the open air, you will find him guilty as charged in the information, and assess his punishment at a fine of not less than $25 nor more than $100, and, unless you so find, you will acquit the defendant.

"(2) You are further instructed that, if you believe to your satisfaction that there is no known practical device, appliance, means, or method by application of which to defendant's building, establishment, or premises by which the emission of or discharge of the dense smoke could have been prevented, then you will acquit the defendant."

"(4) The court further instructs you that the defendant is a competent witness in his own behalf, and his testimony is to be weighed by the same rules that govern the testimony of other witnesses; but, upon passing upon the weight to be given to his testimony, you may take into consideration the fact that he is the defendant in the case, and the interest which he has in the result of the trial."

The court refused to give the following instructions asked by defendant:

"(1) The court instructs the jury that it is a good defense to this action to show to the satisfaction of the jury that there is no practical device, appliance, means, or method by application of which to defendant's building, establishment, or premises, the emission or discharge of the dense smoke complained of in this proceeding could have been prevented, and, if the jury so believe from the evidence, they will find a verdict for the defendant.

"(2) The court instructs the jury that, under the law of Missouri, the defendant in a case of this character is not compelled to employ anthracite, instead of bituminous, coal, nor to adopt any particular article of fuel."

1. Instruction No. 1, refused, is a repetition of No. 2, given, and for this reason defendant has no ground to complain of the refusal of his instruction.

2. On his cross-examination one of defendant's witnesses was asked if there is any difference in the smoke when anthracite or hard coal is burned. His answer was: "No, sir." He was then asked "if anthracite would make as much smoke as bituminous coal." He answered: "No, sir." On objection these questions and answers were stricken out. Notwithstanding they were stricken out, defendant insists that his refused instruction No. 2 should have been given, and suggests that the questions and answers may have had an importance in the minds of the jury which was not cured by the ruling of ...