The offense is a violation of Art. 695, Vernon's Ann.P.C., which is the statute dealing with nuisances. Appellant was convicted of carrying on a trade, business or occupation injurious to the health of those persons who then and there resided in the vicinity. Appellant's business was the manufacture of plastic fabric-films. The allegation was that appellant permitted noxious fumes, gases and odors to escape from his premises and permeate the air of the vicinity. The information recited a prior conviction for an identical offense, and the punishment was enhanced under Art. 61, V.A.P.C., the punishment being a fine of $105.00. The parties stipulated the testimony showing the prior conviction.
The state adduced testimony from numerous witnesses showing that before midnight on October 4th and after midnight of the 5th of October of 1963, numerous complaints were made about sickening odors coming from the plant. The state's case is built around the testimony of Charles James, an employee of the Harris County Health Department in the Air and Water Pollution Section. Mr. James testified that he went in the plant in question on October 7th, and told Mr. Cameron of the complaints that he had received. James stated that Mr. Cameron said he was familiar with the situation on October 3rd and 4th that the men on the night shift 'passed down to him.' Witness James testified that Mr. Cameron told him what somebody else had told him. We shall quote from the record:
Q: "On the evening of October — you were there several days later?"
A: "Yes sir."
Q: "Did Mr. Cameron tell you he had been there on that occasion?"
A: "No sir, he didn't."
Q: "Did he tell you he was not there?"
A: "No sir, he didn't say either way."
Q: "You didn't ask him?"
A: "No sir."
Q: "On that occasion he told you some employees of the Griffolyn Manufacturing Company, if they had been on the night shift, had advised him what had happened?"
A: "Yes sir, on the 3rd and the 4th, two (2) different dates."
Q: "You saw him on the 3rd?"
A: "No sir, on the 7th, and he said that he had the problem on the 3rd, but on the 4th it was actually worse off, and that is when they went in and found this water line plugged up and the material was going out."
The state also relies strongly upon the testimony of appellant's witness, Ralph R. Yoho. His testimony reflects that he received no instructions from Mr. Cameron; that Mr. Cameron was not in charge of his type of work back in October of 1963, and that Mr. Cameron had nothing to do with putting the pieces of plastic together. Mr. *Page 473 Yoho further testified that there are generally 15 or 20 men on a shift. He testified that in the event the line got clogged up, and he couldn't repair it himself he would go to Mr. Hermann, the plant superintendent; that he would never go to Mr. Cameron, that it wasn't his capacity. The witness further related that he had never seen Mr. Cameron working on the reactor; that Mr. Cameron was the president of the company and tried to get business for the company; that Mr. Cameron is not there all the time and that he (Mr. Cameron) goes on sales trips sometimes.
Mr. Yoho then related that he was 'called up — I was told in the evening by Mr. Hermann (in response to the question, 'How about back in October of 1963, was it offensive then?') to go out there and put a charge on this reactor, a catalyst, and I would do that, and on an occasion or two (2) due to the small capacity of the reactor it would boil over and that boiling over would result in an odor, this escaped odor.' To a question propounded by the Court: 'Who told you to do this?' The witness responded: 'Mr. Hermann, the plant superintendent—'
Upon cross-examination the witness, Yoho, stated that if Mr. Cameron told him to do something that he would do it. Also, he said that if Mr. Hermann told him to do something and Mr. Cameron countermanded the order, 'naturally I have to obey Mr. Cameron.'
Robert Callihan, a witness for appellant, testified that he was a plumber; that his shop was about 100 yards from the Griffolyn Manufacturing plant; that he had done some work for Mr. Cameron; that he repaired some broken lines and that Mr. Hermann or either Mr. Cameron would call and 'we would go over there and Mr. Hermann would show us what to do.' The witness related that he did not know he had repaired the lines that had been testified to earlier as having been stopped up. He further testified that after he got over to the plant that Mr. Hermann told him what to do most of the time but that sometimes Mr. Cameron would be there and say what to do.
We observe that the entire testimony of the witness, Callihan, is silent as to any date that he did work at appellant's plant.
There is certainly nothing in the record to indicate that Mr. Callihan made any repairs to the reactor or lines after the event of October 4th and 5th, or that appellant requested him to do so. The state did not even establish that appellant was in charge of the operations of the company. We could conclude from the evidence before us that appellant had an active vice-president in charge of all operations, as easily as we could conclude that appellant was in charge.
The evidence fails to show any personal connection on the part of appellant with the operation or maintenance of the plant. He cannot be held liable criminally for the acts of his subordinates or employees in the absence of a showing that he was connected therewith in come manner recognized by law, whereby one may be criminally liable for the acts of another or others. McCollum v. State, 165 Tex.Crim. R., 305 S.W.2d 612. In Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824 by the Supreme Court of Texas, McCollum is cited with approval on page 829 of their opinion.
The facts do not warrant a conviction in this case.
The judgment is reversed and the cause remanded.
ON STATE'S MOTION FOR REHEARING