People v. Branchport & Penn Yan Plank Road Co.

5 Park. Cr. 604 | N.Y. Sup. Ct. | 1864

By the Court; B. Darwin Smith, J.

The defendants were convicted on the trial under the third and fourth counts of the indictment, and acquitted under other counts. The third and fourth counts were counts at common law, for a nuisance, in suffering their road to be out of repair. These counts both alleged that the defendant’s road was, and had been, and still was, at and until the finding of said indictment, out of repair, to the damage and common nuisance of the citizens of the State, so that they cannot go, return and pass over the same, without great trouble, annoyance and inconvenience. On the trial the defendant’s counsel requested the presiding judge to instruct and charge the jury that before they would be warranted in finding the defendant guilty under either the third or fourth count in the indictment, they must find from the evidence that the defendant suffered and permitted some particular part of their road to be out of repair at some time laid in the third and fourth counts in the indictment, and that such part so found to be out of repair, continued and remained out of repair down to the time of finding the indictment. The court refused to charge and instruct the jury as requested. by the counsel, but, on the contrary, charged them that it was not necessary for them to find that the defendant’s road was out of repair at the time of the finding of the indictment in order to warrant a conviction, and that if the defendant had suffered their road to be out of repair, although it may have been repaired before the finding of the indictment, they should find the defendants guilty. To the charge as made, and to the refusal to charge as requested, the defendant’s counsel duly excepted. These exceptions, I think, both well taken. The request to charge was nothing more than a request to the court to require the People to sustain by proof the material allegations of the indictment, or allegations without which the indictment would have been clearly demurrable. The object of the prosecution by indictment for nuisance to highways, is not for the punishment of the defendant, but the,repair of the highway, when it is out of repair, or the removal of the nuisance when the highway is obstructed. (3 Chitty's Cr. L., 575; 1 Russ, on Cr., 355.) The judgment in such oases is that the defendant pay a fine and abate the nuisance. (Id.; Bac. Abr., Nuisance, 49, and Term R., 142, 143.) In 1 Russ, on Cr., 356, it is said: “ In order to warrant a judgment for abating a nuisance, it must be stated in the indictment to be continuing, as otherwise such judgment would be absurd.” It follows, if such allegation was essential to maintain the indictment, it was error in the court below to hold that it need not be proved when contained in the indictment. The exceptions to the refusal of the judge to charge as requested, and to his charge in distinct conflict with such request, were, therefore, well taken, and the conviction below must, for that reason, be reversed, and a new trial directed in the Court of. Sessions of Yates county, and the case remitted for that purpose.