117 N.Y.S. 418 | N.Y. App. Div. | 1909
Lead Opinion
The defendant was convicted of committing or maintaining a public nuisance in the village of Haverstraw in the county of Bock-land. To sustain the judgment it must be established beyond a reasonable doubt, first, that an act has been unlawfully done or the performance of a duty omitted which is criminal in its nature; second, that the defendant committed such act or omitted to perform such duty, and, third, that such act or omission was with criminal intent on the part of the said defendant. The counts of the indictment upon which the district attorney elected to stand charged that between the 1st day of May, 1906, and the date of the finding of the indictment on July 11, 1907, for a space of 200 feet west of the easterly end of a public highway known as Jefferson street, as it then existed and had-existed for about four months, the defendant had removed the clay, sand and earth which constituted and formed the natural and lateral support of said highway. The indictment failed to charge and the proof failed to show any actual physical-interference with the highway itself, either by way of obstruction or otherwise. , It did show that the defendant was the owner of an estate in the land to the north of Jefferson street, either in his own right or as trustee of an express trust created by former owners thereof. The defendant himself had not done any of the excavating -complained of. It had all been done by the tenants to whom the property had been leased for the purpose of obtaining clay and sand, principally the former, to be used in making brick. Inasmuch as the purpose' and object of the leasing was to permit the taking out of sand and clay for such purpose, and inasmuch as the evidence was undisputed that the defendant was < present on the leased premises while the excavation was going on and in some instances directed the tenants where to dig, and laid out the benches and clay bank and instructed the tenants how to work them, we think that if the criminal fact should be established there was sufficient to require the court to submit to the jury the ■ question whether he was not a principal to the crime within the statute definition thereof. (Penal Code, § 29 ; People v. Mills, 178 N. Y. 274; People v. Kief, 126 id. 661.) We propose, therefore, to examine this case as though the defendant himself had made the excavations complained of.
We think also that the evidence in this case failed to establish any criminal intent on. the part of the defendant. Again, the criminal fact must not be lost sight of. The criminal fact was making the highway dangerous for passage. Undoubtedly, the jury could have found that the defendant intended that the excavation .that was made should be made, but did he intend thereby, or was it a necessary or natural result therefrom^ that the highway should in any way be-immediately affected ? We have searched the record in vain for any satisfactory evidence thereof. The evidence points
If the conclusions which we have reached are sound, this judgment must be reversed, and it becomes unnecessary to consider the exceptions to the rulings of the court upon the admission of evidence, some of which are serious in character.. This court is given the power upon the reversal of a judgment to order a new trial if necessary or proper. (Code Crim. Proc. § 543.) In view of our determination with regard to the main question, it will be impossible under this indictment to ever secure a conviction, and, therefore, the granting of a new trial would be a needless ceremony.
The judgment of conviction should be reversed and the indictment dismissed.
Hirsohberg, P. J., Woodward and Jerks, JJ., concurred; Gaynor, J., concurred in separate memorandum.
Concurrence Opinion
(concurring):
I concur, but not in what is said on the necessity of a “ criminal intent ”. That bald phrase often serves to secure an acquittal on a false notion in the minds of the jury. In the case of offenses mala
Judgment of conviction reversed and indictment dismissed.