State v. Murray

140 S.W. 899, 237 Mo. 158, 1911 Mo. LEXIS 240

• Court: Supreme Court of Missouri
• Decided: November 14, 1911
• Status: Published

Opinion

KENNISH, P. J.

This is an appeal from a judgment of the circuit court of Pettis county, quashing an information which charged the defendants with the misdemeanor of creating and continuing a public nuisance. An appeal was taken by the prosecuting attorney to the Kansas City Court of Appeals, in which court, on the motion of the respondents, the case was transferred to this court upon the ground that the appeal involved a construction of the Constitution of this State, and the case comes thus before us for decision. No question is raised as to the regularity of the appeal or as to the sufficiency of the record.

The information is in two counts, the first being as follows:

“Comes now Harvey D. Dow, Prosecuting Attorney for the State of Missouri, within and for the body of the county of Pettis, and upon his oath of office as such Prosecuting 'Attorney, informs the court:

“That, Elmer Murray and H. F. Schmidt on the - day of October, 1909, at the county of Pettis and State of Missouri, did unlawfully remove and place a great number of dead hogs, dead chickens, dead turkeys, blood and feathers, offal and other filth in and near a certain public road and highway there situate and running from the Sedalia and Longwood road to the new Sedalia and Beaman road, said strip of road being known as the old Sedalia and Beaman road; and did then and there knowingly permit and suffer the said dead hogs, dead chickens, dead turkeys, blood and feathers, offal and other filth then and there to remain in and near said public "road for the space of sixty days thereafter, and from thence until the filing of this information,, to the annoyance of the citizens of this State then and there upon said public road working, passing and repassing; contrary to the form of the statute in such cases made and provided; against the peace and dignity of the State.”

The second count charges an offense in the same form as the first, the only difference being that the place of the offense is alleged to be a certain watercourse and stream, instead of a public highway, as in the first count.

The information is based upon section 4795, Revised Statutes 1909, which provides: “If any person or persons shall put any dead animal, carcass or part thereof, the offal or any other filth into any well, spring, brook, branch, creek, pond or lake, every person so offending shall, on conviction thereof, be fined in any sum not less than ten nor more than one hundred dollars. If any person shall remove, or cause to be removed and placed in or near any public road or highway, or upon premises not his own, or in any of the streams or watercourses other than the Missouri or Mississippi river, any dead animal, carcases or part thereof, or other nuisance, to the annoyance of the citizens of this State, or any of them, every person so offending shall, upon conviction thereof, be fined for every such offense any sum not less than ten dollars nor more than fifty dollars, and if such nuisance be not removed within three days thereafter, it shall be deemed a second offense against the provisions of this section.”

The respondents’ motion to quash the information was as follows:

“Come now the above named defendants, and move the court to quash the information filed herein, for the following reasons, to-wit:

“First: Said information does not state facts sufficient to constitute a crime under the laws of the State of-Missouri.

“Second: Section number 2234 of the Revised Statutes of the State of Missouri of 1909, under which this action is brought, is unconstitutional and void, for the following reasons, to-wit:

“A. Said section is unreasonable.

“B. The title of the bill, introduced to enact said section into a law, did not clearly express the subject-matter of said section.

“C. Said bill contained more than one subject.

“Third. Said section is void for the reason that it is an attempt to enact a valid law, by amending an invalid and void law.

“Fourth. Said section, as it appears in the Revised Statutes of Missouri of 1899, has been changed without authority of the State Legislature.

• “Fifth. The offense charged in the information must be prosecuted by indictment and cannot be prosecuted by information.

“Sixth. Two separate alleged offenses are improperly joined in each count of said information.”

I. In support of the first ground of the motion to quash, respondents contend that the information does not state facts sufficient to constitute a crime under the Nuisance Statute as it stood from the date of its enactment in the year 1855 down to and including the year 1879. That part of the present statute upon which the charge was bottomed makes it an ofíense to “remove or cause to be removed and placed in or near any public highway any dead animal,” etc. The information charges that the defendants “did unlawfully remove and place a great number of dead hogs ... in and near a certain public road and highway,” which highway is particularly described. Every element of the statutory ofíense is charged in the information and with sufficient definiteness to meet all requirements of good pleading. And although we see no reason why the information should be tested by the Nuisance Statute of 1879, it does in fact charge an offense under that law. [Kelley’s Crim. Law and Prac., sec. 977; Sec. 1574, R. S. 1879.]

II. It is next contended that said section 4795 is unconstitutional for the reason that “the title of the bill introduced to enact said statute into a law did not clearly express the subject-matter of said section.” By reference to respondents’ brief we are informed that this ground of attack upon the law goes back to an amendment of the Nuisance Statute in the year 1881. The law, as it stood in section .1574, Revised Statutes 1879, so far as the facts of this ease are concerned, was substantially the same as the present law. The catch words of the section were, “Putting dead animals in well, etc.” The title of the amendatory act of 1881 was, “An act to amend section 1574, Art. 8, Chap. 24' of the Revised Statutes ‘Of Putting Dead Animals in Wells,’ etc.”

The subject of the section, before the amendment, was the prohibiting of nuisances in certain waters mentioned and in certain other places, including public roads. The amendment merely extended the scope of the law to other waters and other places, and was in entire harmony with the subject of the .section amended. Discussing the constitutional provision as to the title of an act amendatory of an existing section of the statutes, this court, in the case of State ex rel. v. County Court, 128 Mo. l. c. 440, said: “The practice of legislation by reference, to sections of the authorized version of the statutes (without other description of the subject of the amending act) has been followed quite generally in this State on the faith of the early rulings of the Supreme Court approving such methods of lawmaking. So much has been done, and so many rights have been acquired, on the basis of those rulings, that we hold that the question of their correctness ought not to be reopened at this day. We adhere to them and follow them as an expression of the settled law of Missouri. [St. Louis v. Tiefel, 42 Mo. 578; State v. Matthews, 44 Mo. 523; State ex rel. v. Ranson, 73 Mo. 78.]”

The act of 1881 was amendatory of a section of the existing law and dealt exclusively with the subject thereof, and therefore the title of the bill fully conformed with the constitutional requirement. [State ex rel. v. County Court, supra; State ex rel. v. Heege, 135 Mo. 112; State v. Smith, 35 Minn. 1. c. 261.]

III. There is no merit in the point that the act of 1881 contained more than one subject. The amendatory provisions of the act were directly related to each other and to the subject of the section amended. That is all the Constitution requires. [State v. Morgan, 112 Mo. 202; State v. Bennett, 102 Mo. 356; State v. Doerring, 194 Mo. 398.]

IV. The main ground upon which reliance is placed to uphold the judgment quashing the information is that “two separate alleged offenses are improperly joined in each count of said information.” In support of this point the first proposition urged in respondents’ brief is that the placing of each dead hog, dead chicken, etc., in the public road was a separate offense; and that as the information .charged the placing of a great number of said objects in said place, it charged a corresponding number of offenses in one count, and for that reason the information was properly quashed.

• Each count of the information charges the removing and placing of the several objects creating the nuisance as one act, committed at one time and place, and it is too plain for argument that this one act thus charged could not be split up into as many separate offenses as there were objects constituting the nuisance. [14 Ency. Pl. and Pr. 1100; 2 Bishop’s New Crim. Proc., sec. 867.]

A more serious question remains for consideration. The information first charges that the defendants removed and placed the alleged nuisance in and near the public road described. It then charges, in the same count, that the defendants knowingly permitted and suffered the said nuisance to remain in and near the said public road' for the space of sixty days thereafter, “and from thence to the filing of this information, to the annoyance of the citizens of the State,” etc. Respondents contend that the information thus charges two distinct offenses; one for the placing of dead animals in the road, and the other for permitting them to remain there.

A reading of the Nuisance Statute at once discloses the fact that it defines two separate and distinct offenses, one for putting dead animals, etc., in wells, and the other for removing or causing to be removed and placed in or near any public road or highway any dead animal, etc., to the annoyance of the citizens of the State; for which offenses different penalties are prescribed. So little have the two offenses in common that it is difficult to understand why they were not set out in separate sections. The charge in this ease is based upon the second offense defined in this statute. It is apparent that the offense defined in the first part of the section is complete as soon as the act creating the nuisance is performed, as in the case of an assault, a larceny or other crime of that class. Under the second part of the section it does not follow that an offense is committed by the mere removing or placing of the alleged nuisance in the place mentioned. . It is essential to charge, and the State must prove, that the alleged nuisance was not only placed in or removed to the place designated, but that it was so placed or removed “to the annoyance of the citizens of the State.” The section concludes with the clause, “and if such nuisance be not removed within three days thereafter, it shall be deemed a second offense against the provisions of this section.” In our opinion the words “three days thereafter” do not mean three days after the nuisance is created, but rather three days after conviction. This clause applies to the offense set out in the latter part of the section only, and in addition to the punishment in case of a conviction, it was intended to bring about the abatement of the nuisance, which fact is of at least as much concern to the public as the punishment of the defendant for having created the nuisance.

It was the practice under the common law, and is authorized by statute in a number of states, for the court to make it a part of the judgment in case of a conviction for creating a continuing nuisance, that the nuisance be abated by the defendant within a time fixed by the court, under penalty of punishment as for contempt. But in order to authorize the abatement of the nuisance, it was essential that the information contain a continuando; that is, an averment of the continuance of the nuisance until the finding of the indictment. The law upon this subject is concisely stated in 14 Ency. PI. and Pr. at page 1100, as follows: “If an abatement is sought, an averment of the continuance of the nuisance is necessary. But if punishment only is sought, such averment may be dispensed with.” [2 Bishop’s New Crim. Proc., secs. 394, 398, 870 and 871; 29 Cyc. 1288; Taylor v. People, 6 Parker’s Crim. Cases, 347; Ashbrook v. Commonwealth, 64 Ky. 139; Commonwealth v. Miller, 139 Pa. St. 77.]

The only difference between our statute and the common law procedure in such cases is that instead of the court being possessed of power to order the nuisance abated, as part of the judgment, the same result is sought to be reached by subjecting the defendant to punishment for a second offense, after failure to remove the nuisance within three days thereafter. And, in order to supply a basis for a prosecution for a failure to abate a continuing nuisance within three days after conviction, it is proper practice to plead a continuance of the nuisance from the time it was created until the filing of the information, as was done in this case.

The information is in exact accord with the form found in section 977 of Kelley’s' Criminal Law and Practice, a work of high authority on criminal law and forms of criminal pleading under the laws of this State, and we hold that but one offense is charged, and properly charged, in each count of the information. In what is said here we do not decide that in charging the offense defined in the second part of the section it is essential to plead a continuando in order to constitute a valid charge thereunder, nor that it is essential so to plead in order to furnish a basis for a subsequent prosecution for failure to remove the nuisance within three days after conviction. What we do hold is that the averment of such continuance of the nuisance is in conformity with approved precedents and does not .render the information duplicitous.

The judgment of the circuit court is reversed and the cause remanded, with directions- to overrule the motion to quash the information and to proceed with the trial of the case.

Ferriss and Brown, JJ., concur.