produced, he shall be fined not less than ten nor more than one hundred dollars, and imprisoned in the county jail not less than thirty days nor more than six months, in the discretion of the jury, for each offense.'

Appellant relies upon Peacock Distilling Company v. Commonwealth, 25 Ky. L. R., 1778, 78 S. W., 893, as conclusively requiring a reversal, while appellee insists that the Peacock case is not authoritative because it only decided that the indictment then before the court was not multifarious and charged but one offense; and that the question whether the common law offense had been superseded by the statutory offense was neither raised nor decided. In support of its position appellee relies solely upon the following language from 8 Cyc., 376:

"The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject matter."

The clause quoted from further says:

"The common law is not repealed, however, if there is no repugnancy between it and the statute, and it does not appear that the Legislature intended to cover the whole subject. Statutes in derogation of the common law are to be strictly construed, unless as in some States, there is a provision to the contrary.

And although we have a statute, in section 460 of the Kentucky Statutes, requiring a liberal construction of statutes, the questions of repugnancy and legislative intention still remain the controlling elements in determining whether there has been an abrogation of the common law as to any particular offense. Section 1253 of the Kentucky Statutes, above quoted, is a part of the Act of 1893, and has been repeatedly before the courts in cases of this character.

In Peacock Distilling Company v. Commonwealth, supra, decided in 1904, the court said:

66

'Appellant was indicted, convicted and fined $1,500 for suffering and committing a common nuisance. The indictment describing the offense charges that the defendant corporation, being in the possession and control of a certain distillery in Bourbon County, which was located on Stoner Creek, and near a public highway, 'did unlawfully suffer and permit the still slops and refuse from said distillery to accumulate at and around said distillery, and did suffer and permit same to flow into the waters of said Stoner Creek, whereby the said stream

of water was rendered foul, noisome and unfit for use for man or beast, and caused the fish in said stream to die, whereby there did arise from a distillery, still slops and refuse, stream of water and dead fish, foul, unhealthy and disagreeable odors, and render the atmosphere foul, noisome, disagreeable and dangerous to the health, comfort and happiness, and to the common nuisance and annoyance, of all citizens of the Commonwealth of Kentucky, and especially to those living in the neighborhood of said stream and distillery, and passing along said highway,' etc.

"Appellant complains that the indictment charges two offenses: One the common law offense of maintaining a nuisance, and the other the statutory offense of poisoning or polluting a stream of water, whereby fish are sickened and killed, and that, therefore, it was demurrable for multifariousness. It not infrequently occurs that the same act may constitute, in whole or in part, two or more offenses. In that event it is the accusative part of the indictment that determines the offense charged by the Commonwealth. This indictment does not go upon the idea that the statute has been violated. It is not a prosecution for a violation of that or any statute, but it is drawn to charge the common law offense of maintaining and suffering a nuisance. The description of the acts constituting the offense states not only the suffering of the filth and slop to accumulate so as to create unhealthful and offensive odors, but that by letting the slops and filth escape into the stream it killed the fish, which, decomposing, added to the offensiveness of the other odors. The gravamen is the creation of unhealthful, noisome odors; that fish were killed and waters polluted by the slop were only incidents and parts of the main offense. The indictment was not duplex, and the demurrer was properly overruled. (Commonwealth v. Megibben, 19 Ky. Law Rep., 292; Greenbaum v. Commonwealth, 10 Ky. Law Rep., 723.)"

The Peacock Distilling Company case was cited with approval in India Refining Company v. Commonwealth, 117 S. W., 274, decided in 1909, in which this court sustained a judgment convicting the appellant of the common law offense of polluting the waters of Elkhorn Creek in Franklin County, by emptying into it refuse from an oil refinery.

Likewise in the Megibben case, 101 Ky., 197, decided in 1897, the court said:

"The objections to this indictment urged by appellee in support of the judgment of the trial court are as follows: First, that the indictment attempts to charge two offenses, the killing of the fish, which is a statutory offense, and the corruption of the air. We do not think that the averment as to killing the fish necessarily makes the indictment duplex, as it is averred merely as one of the constituent elements going to make up the nuisance. As in the case of an indictment for the nuisance of keeping a disorderly house there are frequently alleged various statutory or common law offenses, such as gaming."

These authorities are in line with the general rule announced in 29 Cyc., 1279, as follows:

"In the various States there are found numerous statutes providing for the punishment of, or the imposition of penalties on persons creating or maintaining nuisances, which do not, however, supersede the common law, where they do not attempt to cover all cases of public nuisance. Such statutes are construed according to the general rules for the construction of penal statutes." And, in 2 Roberson's Kentucky Criminal Law & Procedure, section 632, it is said:

"Any use of property which was at common law a nuisance does not cease to be so because the same act is made an offense by statute and a different punishment provided. The party creating the nuisance may be pursued under either the common law 'or statutory remedy. And where the act charged as a common nuisance is an act prohibited by statute, upon failure to show that it was such as to annoy the public, so as there can be no conviction for the alleged nuisance, there may nevertheless be a conviction under the statute. A public nuisance is a misdemeanor at common law, and the common law punishment is by fine or imprisonment, or both, which has not been changed in this State."

In support of the foregoing text Roberson cites L. & N. R. R. Co. v. Commonwealth, 16 Ky. Law Rep., 347; Greenbaum v. Commonwealth, 10 Ky. L. R., 723; and Sullivan v. Commonwealth, 13 Ky. L. R., 397.

From these authorities it is clear the indictment is not demurrable upon either the ground that it is multifarious, or that the prosecution should have been under the statute and not under the common law. Where, as was said in the Peacock Distilling Company case, the same act constitutes, in whole or in part, two or more

offenses, the accusative part of the indictment determines the offense charged; and since in the case in hand the indictment accuses the defendants of making and maintaining a common public nuisance, which is a common law offense, it is squarely within the rule of criminal procedure there laid down. The decision in that case is conclusive of this case.

Judgment reversed with instructions to overrule the demurrer to the indictment, and for further proceedings.

Coulter v. Commonwealth.

(Decided September 24, 1913).

Appeal from Monroe Circuit Court.

1. Indictment-Pleading-Alternative Pleading Not Authorized by Criminal Code.-Alternative pleading is not authorized by the Criminal Code, therefore an indictment charging defendant with having sworn falsely upon one of two occasions when he made conflicting statements under oath, but stating that the grand jury did not know which statement was true is insufficient. Indictment-False Swearing.—In an indictment for false swearing the alleged false statement must be negatived by special averment. W. S. SMITH, JACKSON, DENHAM & COPAS, SPEAR & DENTON and MAX B. HARLIN for appellant.

2.

JAMES GARNETT, Attorney General; D. O. MYATT, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY JUDGE TURNER-Reversing.

An indictment was returned against appellant wherein it was attempted to charge him with false swearing; his demurrer to the indictment was overruled, and being placed upon trial he was found guilty, and from that judgment he appeals.

Several reasons are given for reversal, but in view of our conclusion as to the sufficiency of the indictment we will consider only one.

The indictment is as follows: "The grand jury of Monroe County, in the name and by the authority of the Commonwealth of Kentucky, accuse James Coulter of the crime of false swearing, committed as follows, viz.: The said James Coulter on the -, 1910, and before the finding of this indictment, in the county

day of

and Commonwealth aforesaid, did unlawfully, after ! ing been duly sworn to testify to the truth in an inc ing court held by and in the office of M. D. Kidwell, t judge of the Monroe County Court, said Judge hav authority to administer an oath, touching the wh abouts of a deed made by one Milton Brown to his said Brown's sons, Roland, Bether and We Brown, did then and there knowingly and falsely s and swear that he did not hear Milton Brown tell R Railey at Railey's office or any where else on the i of the earth to burn or destroy said deed;” that or day of April, 1911, and before finding of this dictment, said Coulter, after first being duly sworn the judge of the Monroe Circuit Court, said judge h ing authority to administer said oath, to testify to truth in a trial of a prosecution then pending in court, wherein the Commonwealth of Kentucky plaintiff and R. G. Railey was defendant, charged w burning or destroying said aforesaid deed, did willfu knowingly and falsely state and swear that he did r Milton Brown tell R. G. Railey at Railey's office to b or to destroy said deed-one of the other of said st ments so made by said Coulter is and was false and true and were known to be false and untrue by S Coulter at the time he made same, but which one of s statements was false and untrue is to this grand j unknown, but was known by said Coulter to be f and untrue when he made same, when in fact and truth said Coulter did or did not hear Milton Bro tell said Railey to burn or destroy said deed, whether he did or not hear said Brown so state is this grand jury unknown, but is and was known to s Coulter when he made same, contrary to the form the statutes in such cases made and provided a against the peace and dignity of the Commonwea of Kentucky."

By the provisions of section 124 of the Crimi Code an indictment is required to be direct and cert as regards the offense charged, and the particular cumstances of the offense charged must be set out it if they are necessary to constitute a complete offer

From the very nature of the offense of false swe ing it is essential to set out the particular circumstan constituting it; that is that the defendant at a cert time and upon a certain occasion made certain fa