Crippen v. People

Manning J.: Defendant was indicted for a public nuisance, and on his conviction, an order was made by the court, under-§1347 of Compiled Laws; for removing the nuisance, which is a mill dam; and the case is before us on a writ of error. , A question arose on the argument, whether the order-for the removal of the dam was a final judgment on which a writ of error would lie. We think it is. A judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein: — 1 Bouv. Inst. 264: and the statute relative to writs of error uses the words “final judgment or determination.” The punishment for a public nuisance is imprisonment or fine, or both, under section 5958 of Compiled Laws, and, in the discretion of the court, the destruction or re-* moval of the nuisance, when it is injurious to public health, at the Expense of the defendant, under the directioL. §1347 The removal of the nuisance is not a necessary part of the punishment. It is left discretionary with the court, [125] It is a power that may or may not be exercised; but when exercised, it must be at the time of imposing the fine or imprisonment, and form a part of the same judgment. We can not think the Legislature intended the power should continue to exist after defendant had been fined or imprisoned, as it would leave it in the power of the court, at any time thereafter, to' inflict a second punishment. Nor can we suppose it the intention of the statute that the order should precede the judgment for imprisonment or a fine, as it would involve the absurdity of a ■double punishment, or of two distinct judgments, each punitory in its nature, given at different times, for one and the same offense. For these reasons, as there is no judgment for imprisonment or a fine, we regard the order for the removal of the dam as erroneous. And here the question arises, whether, the error being in the judgment itself, and not in a part of the record preceding the judgment, we can do any thing more than reverse the judgment. We clearly have no power to correct the error by rendering such judgment as the court below should have given; and oases were cited to show the record cannot be remitted to the court below for that purpose: — 2 Met. 419; 5 B. & C. 395; 7 Adol. & El. 58. We should feel bound by these cases, if the plaintiff in error had placed himself in a position to demand, as a matter of strict right, a reversal of the judgment on the ground stated. This he has failed to do, for no complaint is made by him of the judgment itself, in his assignment of errors, and if any of the alleged errors assigned on the bill of exceptions are sustained, the judgment may be reversed on that account, and the cause be remitted to the ■court below for a new trial. Twenty one errors are assigned in all. Five of them, from seventeen to twenty one inclusive, are errors alleged to have been committed byathe court, mlrefusing to grant [126] a new trial. The affidavits on which the motion was made, have been returned with the record and bill of exceptions, into this court; but as they form no part of the record, or bill of exceptions, we can not look into them for the purpose of determining whether the court erred or not in, denying the motion. All of the other assignments of error are on the bill of exceptions. The first and second are on the refusal of the court to allow one of the jurors to be asked what his opinion was respecting mill dams generally, in that part of the country; and in permitting him to be sworn as a juror, after stating that he had formed an opinion as to whether mill ponds in that part of the country were nuisances, &e. The bill of exceptions states, that after the jury had been called, the court asked defendant’s counsel if he had objection to any of the jurors, and that he asked them whether they or any of them had formed or expressed any opinion respecting the guilt or innocence of the defendant, of the charges contained in the indictment; and that one of the jurors stated that he had formed, and had, an opinion as to whether or not mill ponds in that part of the country, with which he was acquainted, were nuisances, when the water covered a large ..surface, &cv The defendant’s counsel then asked, What is your opinion respecting mill dams generally in this part of the country? The question was objected to, and the objection sustained by the court. Defendant’s counsel then objected to the competency of the juror, which was also overruled. It does not appear the juror was challenged, or that his, answers to the questions put to him were on oath. The whole proceeding was irregular. He should have been, challenged, and sworn to answer such questions as might be put to him, touching his competency as a juror in the cause. As this was not done, there is no question of law in this part of the bill of exceptions to be reviewed. The third error assigned, is that Lucius Beall was al [127] lowed to serve as a juror. He was challenged, and on his voir dire, stated that he had formed, and had, an opinion that mill dams generally in that part of the country were nuisances, and created malaria, and thereby produced disease; and when the water is dammed up, and the pond covers a large surface, and is filled with vegetable and other filthy or decaying matter, it is a cause of disease: that all the mill dams with which he was acquainted, he believed to be nuisances, and that they produced disease: that he was acquainted with only three or four mill dams in that section of the country, and he believed that all the mill dams with which he was acquainted were nuisances, and produced disease and sickness; that he was not much acquainted with the dam in question, and had not formed or expressed any opinion regarding it. It is quite evident that, with his preconceived notions against mill dams in that section of the country, he could not sit and hear the evidence and weigh it with the impartiality a juror should. The question of nuisance or no nuisance is one of fact to be found by the jury; and he says that, in his opinion, mill dams generally in that part of the country are nuisances, and produce disease, and that all the mill dams with which he is acquainted, he believes to be nuisances. By this we understand that, in his opinion, as a general rule, mill dams are nuisances, and such as are not are exceptions to the rule. We think the juror should have been rejected. The court likewise erred in not permitting defendant’s counsel to ask Randall, a witness for the People, whether there was not an agreement between him and others who had sued defendant for flowing their land, to suspend the prosecution of their suits until defendant was tried on the indictment; and also in not allowing defendant to prove by the witness that, after the civil suits were commenced, there was an agreement between the parties to such suits to get defendant indicted, and in that way procure a removal of [128] the dam. The evidence was admissible to show the interest of the witness in the public prosecution, and the influence it might have on his testimony for the People. The court should have permitted defendant to prove by Gilbert, that Aldrich, Shoudler, and Barnhart, were acquitted on the merits on the trial of the indictment against them for a nuisance, when they were the owners of the dam. The evidence should have been admitted to go to the jury for their consideration, in connection with the record showing their acquittal. As two distinct facts must be proved to sustain an indictment for a nuisance, viz: the nuisance, and defendant’s connection with it in a way to make him criminally liable, it was competent for defendant to show, in the way he proposed, on what ground the acquittal was had- And the court afterwards erred in charging the jury that the former indictment and acquittal under it had nothing to do with the pending prosecution. The court, we think, should have charged, that the record of the former prosecution was evidence the dam was not a nuisance at the time the indictment mentioned in it was found, but not that the dam had not since become a nuisance, by some change in the use of it, or otherwise. Judgment must be reversed, and a new trial ordered. The other Justices concurred.