State v. Payson

Shepley, C. J. — One of the reasons assigned for an arrest of judgment is, that two distinct offences are alleged in one count. That the first consists in the erection or continuance of a pen, in which swine were kept, and the second in the accumulation of offal near that place. . The allegation respecting the first is, that swine were kept “ in a certain pen a,nd yard there near to the said public street and common highway,” and that they were fed with offal, &c. There is no other allegation respecting the pen, and that does not describe the offence of erecting, continu.ing or using any building for the exercise of any employment, occasioning offensive smells, prohibited by the first clause of the first section of the statute c. 164. It does not allege that the accused erected, continued or used the pen for any employment occasioning offensive smells. It is only a description of the place, where the swine were kept, which were fed with such matter as occasioned a nuisance. The other reason assigned is, that the jury have found the [363] accused to be guilty of a part only of tbe offence charged, .and have not found that he was not guilty of .the residue. When a person indicted for an offence shall, by the verdict of a jury, be acquitted of a part of it and found guilty of the residue, he is, by the provisions of the statute c. 166, § 1, to be considered as convicted of the offence, if any, which is substantially charged by the residue, of which he is found guilty. The verdict in this case, as presented, does not contain any formal words of acquittal of a part of the offence; yet such is its legal effect. For when the verdict ■of a jury finds the accused guilty of a certain part of the offence only, the effect is an acquittal of every thing else ■charged. The legal effect of the verdict, and not the language used in it, must have been intended by the provisions of the statute, for such verdicts are in the customary course of business, presented orally and not in writing. The verdict does find the accused guilty of a nuisance occasioned by making deposits in the field, meaning such deposits as are alleged in the indictment to have been made, .and he is legally acquitted of the other part of the offence ■charged. Motion overruled. Tenney, Wells and Hathaway, J. J., concurred.