
    NUISANCE — PROSECUTION.
    [Cuyahoga (8th) Circuit Court,
    June, 1902.]
    Caldwell, Hale and Marvin, JJ.
    E. C. Terry v. State.
    1. No» Necessary that Accused be Owner of Business to Comvxy a Nuisance.
    Where a person, in managing a business for another, creates and maintains a nuisance, for instance, one within the prohibition of Sec. 6921 Rev. Stat., he will be liable therefor, although he is only an employe ot the proprietor and has no interest in the business.
    2. Prosecution for Nuisance not Affected by Sec. 6920 Rev. Stat., When.
    A prosecution for creating and maintaining a nuisance is not affected by Sec. 6920 Rev. Stat., which provides that, “ the continuance of any nuisance for five days after prosecution commenced therefor, shall be deemed an additional offense,” where it is not charged that there has been a prior prosecution or that the offense charged is an additional offense.
    t. Proof Limited to Period Charged, When.
    In a prosecution for creating and maintaining a nuisance by carrying on a business producing “ noisome and offensive smells,” as prohibited by Sec. 6921 Rev. Stat., evidence of the existence of the odor at times other than that charged in the information is inadmissible, especially when, if such evidence was admitted it would not tend to prove that the odors complained of were produced during the time charged.
    4. Evidence of Sickness Caused by Nuisance.
    In such a prosecution it is competent to show that a witness, who had lived in the neighborhood of the establishment complained of, was sick during the period of the continuance of the nuisance as set up in the information, and to refuse to strike out the testimony of such witness that the offensive odor was the cause of her sickness is not prejudicial error, where, from evidence clearly competent, the court might well have come to the conclusion at which it arrived in the case.
    
      5. Motion to Strike Evidence out of Stenographer^ Notes, Properly Refused, will not lie.
    A motion to strike from the stenographer’s notes testimony which has already gone to the trial court or the jury will not result in taking such testimony from the court or the jury, for the reason that the law does not contemplate that either the court or the jury read what is written by the stenographer before passing on the case, and where the trial is to the court without a jury it will be presumed that no evidence was considered that was not competent.
    6. Right of Trial by Jury.
    The constitutional provision that, “ the right of trial by jury shall remain inviolate,” has been repeatedly held not to enlarge or modify the right of trial by jury as it existed prior to the adoption of the constitution. Hence, those statutes which define and punish by fine only, in a summary manner, and without trial by jury, certain immoral practices, mala prohibita, in which the right to trial by jury did not exist at the time of the adoption of the constitution, are not unconstitutional as in contravention of Sec. 5 or Sec. 10, Art. 1, of the constitution.
    7. Demand of Trial by Jury, Quaere.
    Whether a demand for a trial by jury does not come too late after the accused has unsuccessfully objected to the admission of any evidence, quaere.
    
    Heard on Error to court of common pleas.
    J. O. Winship, for plaintiff in error.
    Police Prosecutor, for defendant in error.
   MARVIN, J.

The plaintiff in error was put upon trial and was convicted in the police court upon an information charging him with maintaining a common nuisance in the city of Cleveland from April 9,1900, continuously to and including April 14,1900, by carrying on the business in a certain building in said city, of heating and drying damp, wet and sour malt, thereby producing noisome and offensive smells, which were injurious to the health and comfort of residents of the neighborhood in which such business was conducted.

On behalf of the plaintiff in error it is urged that there was error on the part of the trial court in that the demand of the accused for a trial by jury was denied.

The record shows that before any such demand was made, the accused objected to the introduction of any evidence and that such objection was overruled. Then followed the demand for a trial by jury. Though it was urged on the part of the state, that this demand came too late because it was preceded by an objection to the introduction of any evidence, we are not prepared to hold that the demand was not made in time, but we do hold that there was no error in refusing a jury trial.

The constitutional provision that “the right of trial by jury shall remain inviolate,” has been repeatedly held not to enlarge or modify the right of trial by jury as it existed prior to the adoption of the constitution.

In the case of Inwood v. State, 42 Ohio St. 186, there is a very full discussion in an opinion by Judge Mcllvaine, of the question now being considered, and, under the authority of that case and the cases there cited, we hold that the rights of the accused were not violated by the refusal to give him a jury trial.

It is further urged that the evidence wholly failed to establish the charge : (1) Because it is said that the accused was not the proprietor of, nor had he any interest in, the business which was being carried on at the place charged, and which is said to have caused the nuisance complained of. On this subject Terry himself testified that the business was being carried on by the Cleveland Grain Drying Company; that he had no interest in the business, but that he was an employe. On cross-examination, after he had testified that he was an employe, he was asked this question : “ In what capacity? ” To which he answered, “Tending to the business of the mill there.”

Question. “ Manager or superintendent? ” Answer. “ I have no superintendency; I merely receive so much salary a week.”

Question. “Manager?” Answer. “ Yes, I suppose so.”

From this and the other evidence in the case, it is clear that the accused was the party who managed the business for the proprietor, and, if, in so managing the business, the nuisance was created, we hold that he could not escape by reason of his having no ownership in the business.

Section 6921 Rev. Stat. provides that:

“ Whoever erects, continues, uses, or maintains, any building, structure or place for the exercise of any trade, employment, or business, or for the keeping, or feeding of any animal, which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or the public * * * shall be fined not more than five hundred dollars.”

To hold that where a business is so conducted as to make the proprietors of such business guilty under this statute, that the man who manages the business, has charge of it and directs how it shall be carried on, is not guilty would be to hold that one may create and maintain a nuisance without responsibility on his part, provided only that in so doing he is only the employe of somebody else. This does not accord with our understanding of the law.

It is further urged, however, that the evidence did not justify the finding, because, it is said that to do so, it must have been shown that the nuisance continued for a period of not less than five days. Section 6920 Rev. Stat., on this same subject, provides that:

“ The continuance of any nuisance for five days after prosecution commenced therefor shall be deemed an additional offense.”

A claim seems to be made on the part of the plaintiff in error, that this prosecution is affected by this last mentioned section ; but we find-nothing in the record to show that there had been a prior prosecution, nor that this was charged as “ an additional offense.” Nor do we find from-the reading of the statute, or from any authority to which our attention has been called or which has come under our notice, that a continuance for five days of such nuisance is necessary in order to warrant a conviction, and the claim of the plaintiff in error in this regard is not well taken.

It is further urged that the evidence fails to show that the business of which the accused was the manager produced “ noisome and offensive-smells ” to the prejudice of the neighborhood or the public. The evidence in this regard is conflicting. Many of the witnesses testify that on some of the days between the ninth and fourteenth of April, 1900, the stench from this establishment was exceedingly offensive, and that it affected the atmosphere for a long distance from the place of business ; and some of the witnesses testify that during this entire period charged-in the information, the smells coming from this establishment were in the highest degree offensive. True, others testify that the odors were much less offensive than the witnesses introduced on the part of the prosecution described them to be, but - this was a matter for the trial court to determine under all the evidence, and we are not surprised at the conclusion reached, and cannot disturb the finding in this regard.

Complaint is further made upon the exclusion by the trial court of evidence offered by the accused. This consists chiefly in the exclusion of evidence as to the existence of these offensive odors at times other than that charged in the information. We find no error in the exclusion of such evidence, nor in any of the rulings of the court upon questions of evidence, which would justify a reversal of the judgment.

As to the exclusion of evidence of the condition at times other than as charged in the information, counsel for the accused stated that he expected to prove that the conditions were exactly the same at such, times as they were between the ninth and the fourteenth of April, but these would only be to show in a round-about way what could as well; be shown, if there were witnesses who knew, that the conditions were such between the ninth and fourteenth of April as that the offensive odors could not have been, or, in any event, were not produced.

Perhaps the rulings of the court during the testimony of Mary Phinnin, a witness on the part of the prosecution, are as objectionable to the plaintiff in error as any which were made during the trial. This witness testified that she had been sick about the time that the offense is charged to have been committed. She was then asked by the prosecuting attorney this question:

Were you sick between the ninth day of April this year and the fourteenth day of April ? ” (This being the time charged in the information.)

This question was objected to by the accused; the objection was overruled, and the witness answered, “ Yes.” Then this question was asked:

“ What kind of sickness did you have? ”

This was objected to, the objection overruled, and an exception taken by the accused, and the witness answered:

“ Sick at the stomach on account of the stink that comes from the mill; stomach trouble.”

A motion was made to strike out this last answer. This motion is a little indefinite, because to merely strike out from the stenographer’s notes testimony which has already gone to the trial court or the jury would not result in taking such testimony from the court or the jury. The law does not contemplate that either court or the jury, read what is written by the stenographer before passing upon the case. But this is a com.mon form and, of course^ meant that the court should not consider this evidence. The trial being in the court, it is to be presumed that no evidence was considered which was not’ competent. We are not prepared to say that it was not competent to show that this witness was sick (she lived in the immediate neighborhood of the establishment of which the accused was the manager) during the period covered in the information. We are not, however, prepared to say that it was competent for her to give the cause of such sickness, but we think no prejudice could have resulted to the accused by the failure of the court to grant the motion to eliminate the answer. From the evidence, which was clearly competent, the court might well have come to the conclusion at which it arrived in the case.

The judgment of the court of common pleas is affirmed.  