State v. Rodgers

• Decision Date: 16 December 1910
• Docket Number: 21,632
• Citation: 93 N.E. 223,175 Ind. 25
• Parties: The State of Indiana v. Rodgers
• Court: Indiana Supreme Court

93 N.E. 223

175 Ind. 25

The State of Indiana v. Rodgers

No. 21,632

Supreme Court of Indiana

December 16, 1910

From Jennings Circuit Court; Francis M. Thompson, Judge.

Prosecution by The State of Indiana against Homer Rodgers. From a judgment for defendant, the State appeals.

Affirmed.

James Bingham, Attorney-General, E. M. White, A. G. Cavins and W H. Thompson, for the State.

Dixon & Meloy, for appellee.

OPINION

Myers, C. J.

Appellee was charged with the violation of § 8029 Burns 1908 Acts 1899 p. 231, § 9, by an indictment which, omitting the formal parts, was as follows: "That Homer Rodgers, late of said county, on March 15, 1909, at said county and State aforesaid, being then and there the owner of and the person in charge of a certain manufacturing establishment for the manufacture of lumber and wood products, in which establishment a certain saw, to wit, a certain swinging cut-off saw, was then and there used, did then and there unlawfully fail and neglect properly to guard the aforesaid saw, contrary to the form of the statute in such cases made and provided."

The indictment was quashed on motion, and the State appeals. The indictment was quashed, as we understand the record, for failure to allege that it was practicable to guard the saw without rendering it useless for the purpose for which it was intended. Section 8029, supra, provides that "all vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein [referring to manufacturing and other plants described] shall be properly guarded." The statute recognizes the use of saws, and the machinery and appliances as lawful and necessary; its prohibition extends to the manner of their use. The legislature has characterized saws as in themselves dangerous, and has provided that they shall be properly guarded.

What is meant by the words "properly guarded"? They are relative terms, and contemplate the extent of guarding, and the question of the efficiency for the purpose used. To say that a swinging cut-off saw was not properly guarded would be to state a conclusion and not a fact. The State contends that if it was important to show that the saw could not have been guarded, it might have been shown as a defense, and that it was a matter for the jury, and not a question of law, and that it is sufficient to charge an offense in the language of the statute. That is true where the statute defines the offense, and states what acts or omissions constitute it; but it is not true where the statute does not define the offense, and where, as in this case, other sections must be looked to, or where the act is held necessary to be supplemented by some other elements, or where some other element is involved, as practicability of guarding. Vinnedge v. State (1906), 167 Ind. 415, 79 N.E. 353.

Here we have a general statute, which provides precautions in the operation of manufacturing plants in many particulars, and among other things provides that certain machinery shall be properly guarded. Section 8045 Burns 1908, Acts 1899 p. 231, § 25, provides that "any person who violates or omits to comply with any of the provisions of this act * * * shall be deemed guilty of a misdemeanor." It has been held that it is not sufficient under this act, even in a civil action, to allege that a party failed properly to guard a prescribed specific appliance, machine or place defined by the statute. There must be coupled with it some allegation showing that it is practicable to guard the machine, appliance or place to work so as not to render it inefficient for the use intended. Bessler v. Laughlin (1907), 168 Ind. 38, 79 N.E. 1033; Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, 75 N.E. 277; Robertson v. Ford (1905), 164 Ind. 538, 74 N.E. 1; National Drill Co. v. Myers (1907), 40 Ind.App. 322, 81 N.E. 1103; Kintz v. Johnson (1906), 39 Ind.App. 280, 79 N.E. 533; National Fire Proofing Co. v. Roper (1906), 38 Ind.App. 600, 77 N.E. 370; Cook v. Ormsby (1910), 45 Ind.App. 352, 89 N.E. 525; Paul Mfg. Co. v. Racine (1909), 43 Ind.App. 695, 88 N.E. 529; Glens Falls, etc., Cement Co. v. Travelers' Ins. Co. (1900), 162 N.Y. 399, 56 N.E. 897.

It was the legislative intent to create an offense only when the thing neglected in and of itself resulted in an offense against the State, and it could only be an offense if it is practicable to guard and it is neglected, and it cannot be left to presumption that it is practicable to guard, for the presumption is that the owner has done what is required of him as a practicable thing, and it must be overcome by the charge specifically made. Vinnedge v. State supra; Stropes v. State (1889), 120 Ind. 562, 22...