People v. Cooper

64 Cal.App.2d Supp. 946 (1944) THE PEOPLE, Respondent,

v.

DR. STANLEY COOPER, Appellant.

California Court of Appeals.

May 19, 1944. Stuart P. Fischer for Appellant.

Fred N. Howser, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.

KINCAID, J.

This appeal is taken from a judgment of conviction of violating section 372, Penal Code, a misdemeanor. The complaint charges that the defendant willfully and unlawfully maintained a public nuisance which was injurious to the health and offensive to the senses, and which interfered with the comfortable enjoyment of life and property by the neighborhood, in that there was all night barking of dogs at the defendant's animal hospital, and that refuse and rubbish were burned during the day.

The evidence discloses that the defendant is a licensed veterinarian who is operating a "Dog and Cat Hospital" on premises which he leases, and which are located on a main business street in the city of Beverly Hills, California. The small building which he occupies for such business is located on the front part of the lot and his incinerator for the burning of refuse is on the rear portion, some 100 feet back. His place of business is adjoined by other business establishments, but there are occupied residences to the rear of, and otherwise near defendant. While there is evidence that some three hundred people live within a one-block radius of the defendant's place of business, five of them testified as to hearing dogs bark, which interfered with their sleep, and that at irregular intervals the odor of burning animal excrement emanated from the defendant's incinerator. Six of such neighbors testified in behalf of the defendant, that they were not annoyed by any such occurrences or conditions.

It is the contention of defendant that, under the foregoing [64 Cal.App.2d Supp. 948] facts, section 372, Penal Code, is inapplicable to him, and that the judgment of conviction against him of violating such section cannot be sustained. With this contention we agree.

Section 370, Penal Code, defines a public nuisance. The pertinent part of section 372, Penal Code, is as follows: "Every person who maintains or commits any public nuisance, the punishment for which is not otherwise prescribed, ... is guilty of a misdemeanor." (Italics added.) This latter section of the code was enacted in 1872, and has never been amended.