State v. Dower
Decision Date | 15 December 1908 |
Parties | STATE OF MISSOURI, Respondent, v. DOWER, Appellant |
Court | Missouri Court of Appeals |
Appeal from St. Louis Court of Criminal Correction.--Hon. Wilson A Taylor, Judge.
Judgment affirmed.
Leverett Bell for appellant.
(1) In the absence of an ordinance by the city of St. Louis on the subject the conviction herein cannot be sustained. State v. Hietzburg, 141 Mo. 375; State v. Tower, 185 Mo. 79; State v. Eyerman, 115 Mo.App. 660. (2) The instruction given by the court and known as number 4 is erroneous. Stetzler v. Railroad, 210 Mo. 704, 109 S.W. 666.
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, Mo. Ann. St. 1906 (Laws 1901, sec. 19, p. 73) which reads as follows:
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:
The court refused to give the following instructions asked by defendant:
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 the court striking out the evidence. There would have been no impropriety in giving the instruction and, in the exercise of an abundance of caution, perhaps the instruction should have been given, but it would require a stretch of the imagination, not the exercise of judicial acumen, to hold as a matter of law, that the jury was influenced by evidence which had been withdrawn from its consideration by the court.
3. Defendant strenuously contends that the evidence is insufficient to warrant a conviction. While the evidence shows that no smoke abatement device can be attached to the boiler in use, it also shows that another kind of boiler can be put in its place to which a smoke abatement device can be attached. The emission of dense smoke in the open air, in cities of one hundred thousand inhabitants or more is denounced by the statute as a public nuisance and made a misdemeanor. Under the statute it is a good defense if the accused shows to the satisfaction of the court or jury 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," can be prevented. This defense is not available, where the defendant installs, or unreasonably maintains in his building, or on his premises, boilers to which no smoke abatement appliances can be attached and which emit dense smoke into the open air. A public nuisance cannot be committed or maintained by the emission of dense smoke, when, as in this case, the evidence shows the offensive heater may be removed and another substituted in its place, to which a smoke abatement device can be attached. To admit this defense in such circumstances would be to grant an option to every proprietor of a building, or other premises, in cities of one hundred thousand inhabitants, of selecting and maintaining heaters to which no smoke abatement appliance can be attached, and the consequent...
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