The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-02-21
MRS.NATION WINS
Judge McCabe Decides Senate
Case i'm Her Favor.
Can Not Be Held For Destruc-
tiOn Of Property.
A PUBLIC NUISANCE.
Person Can Not Abate One With
out Being AggrieVed.
Therefore She Had No Right to
Destroy Joints
Question OF Malice the Saving
Clause.
A PUBLIC NUISANCE.

In deciding the Nation case in the
court Of Topeka, Judge McCabe square
~ held that the defendant had no right
to destroy saloon property, and that IN
so doing, she was guilty Of the offense
charged-sfe was acquitted because or
the stipulation and agreement by the
state that she had no malice toward the
owners Of the property. such malice be-
ing a necessary ingredient Of the Of
fense-
Mrs. Nation was discharged in the city
court this morning on the charge Of
maliciously destroying property owned
by Sheep Lytle and Mike Kelly, pro-
prietors of a joint known as The Sen
ate" which Mrs Nation and her defend
ers demolished on the morning Of Feb
ruary 81
The case was submitted uDon an
agreed statement of facts The facts
agreed upon. in brief. were tnat she and
her followers smashed the bar and 1x-
lures of the place but in doing SO held
no malice against the prOprietOrS but
did it with the idea Of abating public
nuisance.
The state maintained that an indi-
vidual had no right TO abate public
nuisance where no special injury had
been sustained by the defendant and the
point was decided IN favor OF the prose
cution
AIE SE-0Au luE1L4lH- aElCEQ 4DQ4 III
the written stipulation by the attorneys.
was that Mrs. Nation bore no malice
toward the plaintiffs and therefore was
she guilty or not of malicious destruc-
tion of property. The court held she
was not guilty and ordered her release.
The following is the decision given by
Judge McCabe-
The case was tried to the court with
out a jury, upon an agreed statement Of
facts entered into in writing and signed
by the attorneys for the state and the
defendant. the salient facts admitted
being that the defendant destroyed the
property described in the complaint.
which was located and used in a GER
tain place in the city OF Topeka. known
as The Senate, that said place was
a nuisance under the laws Of this state-
that the property destroyed was used
IN the course Of carrying on said nuis-
ance; and that the destruction by the
defendant was without malice towards
the owners of the destroyed property
lt was TO he hoped that upon the facts
as stipulated and agreed upon by cOun-
sci. the one broad, legal question alone
could have been presented. viz, whether
or not an individual has the right TO
aDate public nuisance, where no spe-
clal injury has been sustained by such
Individual; or. In other words could
AIRS Nation, the defendant in this case.
be convicted under section 12S of the
crimes act. statutes Of 1897, where she
mad destroyed property used in carrying
on anu maintaining a saloon If this were
the only question of law presented in
this case by the facts as agreed upon.
there should not be much room for
doubt as 70 what the decision should be.
for this court. in harmony with the de-
cision Of the supreme court of this state
In the case Of School District vs. Neil.
s6 Kan 6ll. and a large number of the
courts of last resort of the yarious
states. would have to decide that an in
d1vtdual has not the right to abate a
public nuisance. where no special in
jury is sustained by the Individual as
the result of such nuisance-iD other
words, that the defendant is guilty as
charged. Manv of the ablest text writ
ers also announce the rule 10 be to this
effect The contention of the state is it
seems TO me. abundantlv stabIishad
upon this proposition. lit is not claimed
that Mrs Nation suffered or sustained
any special injury by reason of the ex-
istence OF the nuisance which she under
took TO ahate. but it is expressly ad-
lnitted that she is a resident Of Barber
county. and was only temporarily in
Shawnee county.
However. a second question Of law
arises upon what are admitted to be the
Iacts N this case, which is. Can the de-
fendant be convicted where the destruc-
tlon OF the property was without malice
TO the owners Of the same2 1t is ex-
pfessly stipulated in writing by the at
terneys tor the state. in the agreed
statement Of facts submitted to the
court. upon which Judgment il to be
rendered, that AIRS. Nation had no mall
Ice towards the owners of the prop
efty destroyed The section of our stat
utes upon which this proposition is
based is section 12S of chapter 100 81 the
compiled laws Of 1897, which reads as
follows:
Any person who shall wiufuuv and
uallclousiy destroy. deface. remove or
lnJure the property Of another. public or
private, shall on conviction be deemed
Snlity ot misdemeanOr. and punished
by nne not less than five dollars nor
more than five hundred dollars or hv
imprisonment IN the county jail not TO
exceed six months or hy both such fine
and Imprisonment
Irls section OF cur statutes VAS o4Szi-
rally known as chapter ln4. of the saS
SION laws Of 1856 which chapter was Her-
sltieas al The time of its enactment. An
act Fo FuElsh Malicious Mischief Sim
li-I slAllSes exist II most Of tho states
ct tle mon IL has quite generally
beer, held by the courts in constraiirs-
SAeh Stasulss. that the malice necessary
- e1is- before "a person can be convict
~ tilrleutiler. must be malice conceived
ANa-i.SN tle owner Of the property. and
tHat nance existing against the proper-
" injured or destroyed is nor s11f7ciLnt
10 sustain "A conviction under s,lci, st.sr
ltss- Aany "a the cases decided have
&Iia@h under statutes prescribing pur-
l@htueht Tor the malicious injury or kin
lns OF the domestic animals of another.
y e nave Sucn a statute. known as SEC
tlon 114. chapter loo. compiled laws cf
49,. Mnlen II one Of the malicious mis-
cnleE statutes OF this state the other -
Ing the statute under which This scfto7
Is prosecuted -
Aile decided weight Of authority. it
seems Ao me. supports the doctrine +has
#@@S#~ w GenfAcLon can be had under