Franklin Common Pleas

CRIMINAL LAW-EVIDENCE.

[Franklin Common Pleas, June 1, 1905.]

CHAMBERS B. YOUNG V. STATE OF OHIO.

1. CONVICTION MAY BE HAD UPON CIRCUMSTANTIAL EVIDENCE.

One accused of an offense may be convicted upon circumstantial evidence when it is sufficient to satisfy the jury beyond a reasonable doubt of his guilt.

2. WHEN JURY MAY CONCLUDE THAT ACCUSED WAS PLAYING GAME OF POLICY. Where the evidence shows that the accused was doing that which certain witnesses, familiar with the scheme, called "policy," the jury is warranted in finding that the accused was engaged in the scheme.

3. JURY MAY INFER THAT DRAWINGS WERE BEING MADE WHEN TICKETS ARE BEING SOLD, ETC.

The jury is warranted in finding that policy drawings were being made in carrying out the general scheme, where the evidence shows that tickets were being written, and sold,—that being an essential part of the scheme of chance. It is not necessary that some one testify directly that he saw the drawings made.

ERROR.

Franklin Rubrecht, for plaintiff in error.

J. M. Butler, C. E. Carter and J. M. Westwater, for defendant in

error:

Adams v.

Upon the sufficiency of the affidavit, and the evidence. State, 14 Dec. 257;.Dillingham v. State, 5 Ohio St. 280; Reilley v. United States, 12 O. F. D. 722; State v. Carpenter, 60 Conn. 102 [22 Atl. Rep. 497]; 19 Am. & Eng. Enc. Law (2 ed.) 590; Commonwealth v. Sullivan, 146 Mass. 142 [15 N. E. Rep. 491]; Thomas v. State, 118 Ga. 774 [45 S. E. Rep. 622]; State v. Walls, 56 Atl. 111 (Del.); State v. Wilkerson, 170 Mo. 184 [70 S. W. Rep. 478]; State v. Arthur, 70 N. J. Law 425 [57 Atl. 'Rep. 156]; Clark v. State, 47 N. J. Law 556 [4 Atl. Rep. 327]; Commonwealth v. Adams, 160 Mass. 310 [35 N E. Rep. 851]; State v. Collins, 63 N. J. Law 316 [43 Atl. Rep. 896]; Bueno v. State, 40 Fla. 160 [23 So. Rep. 862]; Stearns v. State, 21 Texas 692; Evans v. State, 13-23 O. C. C. 103.

BIGGER, J.

This is a proceeding in error brought in this court to reverse the judgment of the police court of the city of Columbus, Ohio. The defendant was tried and convicted in that court of the offense of promoting and being concerned in as agents thereof, of a certain scheme of chance commonly called policy, and that he kept the books and records and received the duplicate of certain tickets representing an interest in said scheme of chance and received the money for said tickets, which said tickets had been sold by parties unknown to affiant.

Young v. State.

The petiton in error sets out many alleged errors in the proceedings in the court below and the bill of exceptions contains all the evidence offered on the trial. I have read over the entire record including the evidence in the case and have read carefully the brief filed by counsel. As a result I am clearly of the belief that the plaintiff in error had a fair trial in the court below and no prejudicial error occurred affecting his rights.

As to the affidavit upon which he was tried, I think it clearly sufficient. It is not merely in the language of the statute but specifically states the act with which he is charged and specifically advises him of the nature of the charge made against him.

As to the evidence I think it leaves no other conclusion open to an unprejudiced mind than that the defendant was concerned as charged in this scheme of chance called policy. The jury have a perfect right to convict a person of an offense properly charged against him upon circumstantial evidence when it is sufficient to satisfy them beyond a reasonable doubt of his guilt, and in this case I think it is abundantly sufficient. It is not essential that there should be mathematical demonstration or direct evidence of every essential fact in a case. The general scheme of chance called policy was described by persons familiar with it, which leaves no other conclusion than that one, doing what the evidence. shows the defendant was doing, was engaged in conducting, as agent, this particular scheme of chance. The jury might rightfully infer that there were drawings being made in carrying out the general scheme, else why would the tickets continue to be written and sold, that being an essential part of the scheme. When the drawings cease the selling of tickets cease. It is not essential that some one should specify directly that he saw the drawings made; the jury might infer this from the facts. established by the proof.

After carefully reviewing the evidence I do not find that the court committed any error in the rulings upon the trial in the admission or rejection of evidence.

For these reasons I have reached the conclusion that the defendant below had a fair trial and that he was rightly convicted of the offense charged against him. The judgment of the police court is therefore affirmed at the cost of the plaintiff in error, and the cause remanded to that court to carry out the sentence.

Superior Court of Cincinnati.

NUISANCE-EQUITY.

[Superior Court of Cincinnati, Special Term, May, 1905.]

BERNARD KLUMPER V. THEODORE VOGELGESANG.

1. PLAINTIFF NOT ALWAYS REQUIRED TO ESTABLISH RIGHT AT LAW BEFORE ASKING EQUITABLE INTERVENTION.

The rule in equity requiring plaintiff to establish his right at law before seeking equitable intervention has no application in an action to enjoin a nuisance which affects the very occupancy of his property as a residence, and the health and comfort of himself and family.

2. BLACKSMITH SHOP NOT A NUISANCE PER SE, BUT MAY BECOME SO.

A blacksmith shop is not a nuisance per se, but may become so by its use and operation if operated in an unusual and exceptive way.

3. RULE FOR DETERMINING WHETHER TRADE LAWFUL IN ITSELF IS NUISANCE. In determining whether or not a trade, lawful in itself, such as a blacksmith shop, is obnoxious to the health, comfort and convenience of neighborhood residents because of disagreeable noises, offensive odors and noxious gases, regard must be had not only to the noises, odors and gases, but to the amount and intensity of the same, as the question in every case is one of degree; and, in deciding the question. the court must also consider the locality, the time of day during which the trade is carried on, and the effects produced by the noises, odors and gases; and, before a court of equity will grant injunctive relief, plaintiff must clearly establish that he will suffer irreparable injury.

4. ANNOYANCE TO FASTIDIOUS TASTES NOT GROUND FOR ENJOINING TRADE LAWFUL IN ITSELF.

The operation of a blacksmith shop in the usual manner will not be enjoined merely because a person of fastidious tastes might be somewhat annoyed by its proximity to his property, but, in order to secure such relief, he must show that his property has been rendered unfit for ordinary use, or unbearable or unhealthful.

5. TANGIBLE INJURY TO PROPERTY MUST BE SHOWN BY DETERMINATE EVIDENCE TO WARRANT INJUNCTION.

Equity proceeds with great caution before interfering with a trade useful to the public and before it will do so it must be shown by determinate and satisfactory evidence that tangible injury is occasioned.

C. W. Baker and V. E. Heintz, for plaintiff.

J. E. Bruce and Harlan Cleveland, for defendant.

HOFFHEIMER, J.

This is an action to enjoin defendant from operating a blacksmith shop next door to plaintiff's residence. A motion for a temporary order was filed, and by agreement between the parties the matter stood over, and the case was heard upon its merits. Plaintiff substantially claimed that he was the owner, since 1894, of a lot 25 x 100 feet on Walnut street in Cincinnati; that there was a large modernized residence upon it, occupied by himself and family for ten years. He claims the neighborhood is strictly a residence neighborhood in which are a number of valuable modern residences and in which there are no factories or shops, and that the neighborhood is entirely unsuitable for a factory,

Klumper v. Vogelgesang.

blacksmith shop or similar institution; that defendant bought the adjoining premises and is preparing to establish a horseshoeing shop thereon, for the purpose of manufacturing horseshoes and putting them on horses' feet; that such use will cause such noise, smells and noxious odors as to greatly interfere with plaintiff and members of his family in using and enjoying his residence, and that it will be a nuisance to the neighborhood and general public, and that the establishing and operation of same will work a special and irreparable injury to the plaintiff on account of the adjacent property; that there will be injury as to the comfort and enjoyment of his family and also of his property; that he has no adequate remedy at law; that he asked the defendant to desist from said work but that he refuses, wherefore an injunction is prayed for.

Defendant admits by his answer the ownership of the adjoining property, and likewise that he is preparing to place a blacksmith shop thereon. All other allegations are denied.

In the argument, defendant contended first, that plaintiff should have established his right at law before seeking equitable intervention. Second, that plaintiff failed to prove the injury complained of to be a nuisance. As to the first proposition, counsel relies on Goodall v. Crofton, 33 Ohio St. 271 [31 Am Rep. 535]. In that case it was determined that where the injury to the property may be fairly estimated in money, there is an adequate remedy at law, and the injunction should not be granted. In the case at bar, if the claim to the injunction is based upon injury to property alone, as the thing complained of does not threaten irreparable injury to the property (as, for example, the very destruction of the property itself), no injunction can be granted on that ground.

At page 275 of Goodall v. Crofton, the court says: "We think the plaintiff below, upon the showing made in his petition, and by his proofs, has an adequate remedy at law. There is no complaint that the alleged nuisance, in any degree, interferes with his health or that of his family; that it works a personal inconvenience or discomfort."

In the case at bar there is, however, complaint that the blacksmith shop affects the very occupancy of the property by plaintiff and his family; that the operation of the shop affects their health and comfort. Under such a state of facts it is not necessary to establish one's legal right before proceeding in equity. The court, therefore, must consider whether, under the evidence, plaintiff's health and comfort is affected to such a degree as to call for the equitable remedy of injunction.

A blacksmith shop is not a nuisance per se. It is an important and highly necessary business. "It is a usual and very respectable business." Culver v. Ragen, 8 Circ. Dec. 125 (15 R. 228).

Superior Court of Cincinnati.

Does the proof show this particular shop to be a nuisance? Any lawful business may become a nuisance by its use and operation if operated in an unusual and exceptive way. Is this true with regard to defendant's business? Does the operation of this shop by defendant work a substantial inconvenience and discomfort to the plaintiff in the use and enjoyment of his property? These questions must be answered adversely to the defendant before the preventive remedy of injunction can issue, and it must be clearly established by evidence that irrepar able injury will follow. Rouse v. Martin, 75 Ala. 510 [51 Am. Rep. 463].

Before hearing the evidence, a view of the premises was had by the court. The evidence shows that the plaintiff was the owner of a rather substantial two story brick dwelling on Walnut street near Thirteenth. He lived there about ten years. Next to his property on the south was a two story brick dwelling. Defendant purchased this property for several thousand dollars and remodeled it at considerable expense. He converted the first floor into a blacksmith shop, and the second floor into living quarters for himself and family. A yard or areaway of from six to ten feet in width separates the two houses. The shop is provided with two forges, and the anvils are placed on solid blocks, set into the earth. Piedmont coal is used, and the smoke arising is not large in volume. A chimney is provided, which ordinarily carries the smoke over and above the plaintiff's house. The noise and odors that emanate from the shop may be said to be such as are ordinarily incident to a blacksmith shop of this size. Quite a large amount of cinders are cast upon plaintiff's yard, and some find lodgment upon the window sills of plaintiff's house. Six windows are on that side of plaintiff's house that faces the side of the blacksmith shop. Some years ago Walnut street was a strictly residence street, but its character has been gradually undergoing a change, and there are now numerous shops and mercantile houses in the vicinity.

Immediately adjoining plaintiff's house on the north is a grocery; next to the grocery is a large old tenement, the first floor of which is used as a saloon. Directly across the street from plaintiff's property is a large four or five-story tenement, the first floor of which was for many years used as a stable, and to-day appears to be used for storing or housing wagons. Upon this same street several small shopsgroceries, saloons and barber shops,-are sandwiched in between old residences.

Immediately in the rear of plaintiff's house on Jackson street is a large laundry establishment, I think the White Star Laundry. A great deal of smoke issued from this plant, which frequently blows down and over plaintiff's house. Plaintiff claimed that some of the smoke of the blacksmith shop escapes through several skylights which are on the line