State v. De Wolfe

• Decision Date: 04 February 1903
• Docket Number: 13,006
• Citation: 93 N.W. 746,67 Neb. 321
• Parties: STATE OF NEBRASKA v. W. W. DE WOLFE
• Court: Nebraska Supreme Court

93 N.W. 746

67 Neb. 321

STATE OF NEBRASKA v. W. W. DE WOLFE

No. 13,006

Supreme Court of Nebraska

February 4, 1903

WRIT of error, on behalf of the state, from the district court for Lancaster county. The defendant was indicted for maintaining a nuisance. A demurrer to the information was sustained. Heard below before HOLMES, J. The county attorney excepted and brought error to this court. Exceptions sustained.

EXCEPTIONS SUSTAINED.

James L. Caldwell, County Attorney, William T. Stevens and Loren E Winslow, for the state.

William M. Morning and Charles A. Morning, contra.

OPINION

SULLIVAN, C. J.

De Wolfe was charged in the district court for Lancaster county with having unlawfully exposed the citizens of the villiage of Bennett to a contagious disease by negligently keeping an infected person in a public place. The defendant demurred to the information, and the court, being of opinion that the facts alleged did not constitute a crime, dismissed the prosecution. The county attorney excepted to the decision and by this proceeding challenges its correctness.

The ground of the decision is thus stated in the judgment dismissing the action: "The Code particularly sets forth what acts shall be deemed a nuisance, and provides a penalty therefor, and failing to specify the acts complained of, no prosecution can be maintained therefor." The question then, to be considered, is whether common-law nuisances which have not been enumerated in the Criminal Code are punishable as crimes. In this state all public offenses are statutory no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law. Criminal Code, sec. 251; Wagner v. State, 43 Neb. 1; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355; Estes v. Carter, 10 Iowa 400. But while there are in this state no common-law crimes, the definition of an act which is forbidden by the statute, but not defined by it, may be ascertained by reference to the common law. Smith v. State, supra; Mitchell v. State, 42 Ohio St. 383, 385; State v. Twogood, 7 Iowa 252; Estes v. Carter, supra; Pitcher v. People, 16 Mich. 142; Prindle v. State, 31 Tex. Crim. 551, 21 S.W. 360. A statute declaring all common nuisances to be criminal is to be construed as prohibiting every act which was by the common law indictable as a nuisance. These nuisances are, as Mr. Greenleaf has said, "a species of offense against the public order and economical regimen of the state." 3 Greenleaf, Evidence, 184. They are generally under the ban of the law because the experience of ages has shown that their tendency is hurtful to the public. Perhaps the common barretor, the common eavesdropper and the common scold are no longer formidable evils, but certainly most of the other common-law nuisances are as injurious and detrimental to society now as they ever were. There is as much reason now as there ever was to repress conduct calculated to injure the health and morals of the people, or to shock their religious feelings, or their sense of decency, or to endanger their lives or property, or to disturb the peace of the neighborhood. Without a clear expression of its purpose so to do, we can not believe that it was the intention of the legislature to so limit the meaning of the word "nuisance" as to make conduct blameless which has always been considered inherently wrong and deserving of punishment. If the theory upon which the trial court decided this case is correct, a large number of common-law nuisances are not crimes in this state, and many vicious, immoral and revolting acts may be committed in public with impunity.

The section of the Criminal Code under which the information was drawn is as follows: "Every person who shall erect, keep up, or continue and maintain...