Chute v. State

| Minn. | Oct 15, 1872

By the Court.

Berry, J.

I. The indictment in this instance charges two distinct offenses oí an entirely different character. One is the maintaining of-a stone building overhanging a public street, and liable and threatening to fall into the same, to the great damage of people passing along such street. The other is the permitting to remain in said building large quantities of filth, emitting offensive stenches dangerous to public health. The demurrer of the defendant below should therefore have been allowed. Gen. St., ch. Ill,sec. 3. This conclusion does not, however, necessarily determine the case,-as the indictment may be amended'by striking out one count. Gen. St., ch. Ill; sec. 7; State vs. Wood, 13 Minn. 121. Whether there is anything in the attorney general’s position, that as no evidence was offered as to the latter offense, the duplicity of the indictment is unimportant, it is not necessary in the disposition which we make of this case to consider.

II. F. B. Long,- a witness for the prosecution, and an architect, testified that he examined the building above mentioned, and made a written report of the result of such examination. The witness testifying that he knew that the report (which was produced and identified) was accurate when made, the court, upon the offer of the county attorney, allowed the witness to examine it to refresh his recollection. The defendant’s counsel argues that this was improper, because it did not appear that the witness did not recollect the facts without refreshing his memory. If he did so recollect, while it would certainly seem to be idle to refresh his memory, yet it is not easy to see in what respect the defendant could have been injured, nor what worse could be said of the inspection of the report than that it was unnecessary. If, on the other hand, the memory of the witness required refreshing, his examination of the report was entirely unobjectionable.

III. Defendant’s counsel asked the court to require that he be allowed to inspect the report above mentioned, for the purpose of cross-examining the witness Long, but the court denied the request. We see no good reason for the denial. The witness had sworn that the report was accurate when made, and it was handed to and examined'by him for the purpose of refreshing his recollection. Why should not the opposite counsel have been permitted to inspect it that he might see what it was; that he might cross-examine as to its accuracy, and as to the time wlien, and the person by whom it was made, and that he might ascertain by inspection and cross-examination whether it was such a document as could properly and reliably be referred to by the witness for the purpose of refreshing his recollection!

If it was important for the prosecution that the. witness should be permitted to examine it, why was it not equally important for the defense to ascertain by its inspection, as' well as otherwise, whether its examination was really calculated fairly to subserve the purpose for which it was offered to the'witness ! We think the court erred in refusing defendant’s request. Rex vs. Ramsden, 2 Carr. & Payne, 603; Hardy’s case, 24 How. St. Trial, 824; Merrill vs. I. & O. R. Co. 16 Wend. 600; 1 Gr. Ev. § 466.

. IY. Defendant offered to .show that he had consulted competent builders by whom he was advised that the building was not in danger of falling, and he insists that the court erred in excluding the testimony offered. Certainly this testimony was not competent upon the questions whether the building was or was not a nuisance, or whether defendant was answerable for maintaining it, and if, as contended, it was proper to be considered in determining upon the amount of punishment to be inflicted upon the defendant, this might be a very good reason why it should be addressed to the court after verdict, but no ‘reason at all why it should be submitted to the jury.

Y. At the request of the county attorney, and against the objection of the defendant, the court ordered the jury under the charge of an officer to “ examine and view the building,” and such examination and view were had accordingly. Defendant claims 'that the order was error. Sec. 10, ch. 114, Gen. Stat., enacts that “ the court may order a view by any jury empannelled to try a criminal case.” The propriety of allowing a view is thus committed to the discretion of the court, and there is nothing to show that the discretion was abused in this instance. So far as the settled case shows, the order was “ to examine and view the building.” The proper purpose of such examination and view was not stated by the court, it being taken for granted that the jury knew their duty. If the defendant desired the jury to he informed on this subject, he should have requested the court to give the necessary directions.

VI. Notwithstanding defendant’s objection, the court received the record of the proceedings of the city council of the city of St. Anthony, (in which the building aforesaid was situate,) at a meeting holden on the 6th day of September, 1870, showing that defendant was present as an alderman, and that a resolution was then passed declaring said building unsafe, and a public nuisance, and directing the defendant to remove the same. We are unable to perceive any ground upon which the reception of this testimony can be justified. If the defendant had offered evidence tending to show that he'was entirely and excusably ignorant of the state of facts which made the building a nuisance, there might be some reason for showing that he was not thus ignorant, and for that purpose the records aforesaid might have been competent. But that is not this case. Defendant did not set up excusable ignorance of the facts, but claimed that they did not make the building a nuisance. Still if the only possible effect of the testimony ' (the records) was to shdw notice and knowledge on defendant’s part of the condition of the building, (for which purpose the attorney general contends it was competent,) its reception might be regarded as harmless. But as it might influence, and we cannot say that it did not influence, the minds of the jury in reference to the main question whether a nuisance existed or not, we think its reception was substantial error.

VII. The indictment was for maintaining the building upon lots one and two, in block three, &c. The evidence showed that the building was in part situate upon lots one, two and three, in block three, &c. The defendant requested the court to charge the jury, “ that the building in question is shown by the evidence to be situate in part on premises and land not described in the indictment, and therefore the jury cannot on this indictment find the defendant guilty of the offense charged by maintaining it.” The allegations of the indictment as to the lots upon which the building was situate are descriptive of the identity, of the subject of the action,-and therefore essential to be proved as laid. 1 Gr. Ev. secs. 56, 58, 61, 63, 65; 2 Gr. Ev. sec. 12; People vs. Slater, 5 Hill. 401; 1 Arch. Cr. Pl. and Pr. [119] and Notes; Wharton’s Cr. Law, sec. 281. It was, therefore, necessary in this case to show that defendant was maintaining a building upon lots one and two in block three, &c., which as maintained upon said lots was a nuisance. If the evidence showed that such building extended over upon lot three, the case would be one of redundancy of proof, not a case of variance. 1 Gr. Ev. sec. 67. Testimony showing that the building extended over upon lot three, would, of course be outside of the issues, though we do not discover that it was objected to in this case. But while the defendant could not under this indictment properly be convicted of maintaining a nuisance upon lot three, still he could properly be convicted of maintaining a nuisance upon lots one and two. (if the evidence was sufficient), notwithstanding it appeared that the building extended over upon lot three. The court was therefore right in refusing defendant’s above request, though, we do not discover that the jury were properly instructed upon this point.

VIII. Defendant in his last point claim? generally, that the court erred (n refusing several of his requests, and in its own charge to the jury. As defendant’s counsel has not deemed it necessary to enlarge upon the matters thus referred to, or to cite authorities in support of his general claim, we will only refer briefly to one or two points which it may be of importance to consider in view of possible future proceedings. It appears that there was a mortgage upon the premises upon which the building before mentioned was situate, and defendant asked the court to instruct the jury that defendant could not remove the building without subjecting himself to crimina^ liability under the provisions of ch. 64, Laws 1869, and that under such circumstances the law does not throw upon him the duty of incurring such liability. Ch. 64, Laws 1869, makes it a criminal offense for a mortgagor to remove any building situate upon mortgaged real estate to the prejudice of the mortgagee, “ with the intent to impair or lessen the value of the mortgage,” without consent of the mortgagee. We are of opinion that the court was right in refusing defendant’s above request, and in charging the jury that “ if a mortgagor removes a building not with the intent to impair the value of the mortgage, but in performance of his duty to the public to remove a nuisance, such removal would not make him liable to a prosecution under this act, especially if the act is done in pursuance of an order from public authority.”

IX. The court also charged the jury as follows: “You must weigh the evidence given in court, coupled with your own examination, and if you are satisfied therefrom, beyond a reasonable doubt, that the building is a nuisance, and dangerous to the public, you should so find.” Defendant’s exception to this instruction was, we think, well taken. We think the court below misconceived the proper purpose of a view by a jury. The view is not allowed for the purpose of furnishing evidence upon which a verdict is to be found, but for the purpose of enabling the jury better to understand and apply the evidence which is given in court. Commonwealth vs. Knapp, 9 Pick. 515.

If this were not so, then in every case of a view it would be impossible to determine whether the verdict was justified by the evidence or not, since whatever ¿he juroi-s might see upon the view could not be presented in a case reporting the testimony. And ag’ain, one juror naig'ht observe something upon the view which another did not, so that the same evidence would not in fact be submitted to the entire jury. The case would then stand as if one juror had private and peculiar knowledge of facts not known to his fellows to make which available, it is held, that the juror must be sworn and testify to the same. 1 Gr. Ev. § 364, note 2; 1 Starkie Ev. 510, note 2. Besides this, the parties have, for the most obvious reasons, a right to know just what evidence is submitted; but this cannot be if every juror is to be permitted to look up facts on his own account.

A different rule as to the proper purpose of a view may perhaps be allowed in case of proceedings, (not according to the course of the common law,) to estimate damages, as in Parks vs. Boston, 15 Pick. 209, though we refer to this merely to say that we do not now decide the question which such a case would present. This disposes of all the points which we deem it necessary to consider.

The result is, that the judgment is reversed, but as the indictment may be amended by striking out one count, we remand the case that application may be made for such amendment, and thereupon a new trial had, or in case the amendment be not obtained, that the defendant may be discharged.