Chute v. State

• Decision Date: 01 January 1874
• Citation: 19 Minn. 230
• Parties: SAMUEL H. CHUTE v. STATE OF MINNESOTA.
• Court: Minnesota Supreme Court

Page 230

19 Minn. 230

SAMUEL H. CHUTEv.

STATE OF MINNESOTA.

Supreme Court of Minnesota.

Error to the district court, Hennepin county.

The indictment against the plaintiff in error was for a nuisance in maintaining a building. The court below overruled his demurrer to the indictment, and on trial he was convicted, and he sued out a writ of error.

Lochren, McNair & Gilfillan, for appellant.

F. R. E. Cornell, Atty. Gen., for respondent.

BERRY, J.

1. The indictment in this instance charges two distinct offenses of an entirely different chaacter. 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. c. 111, § 3. This conclusion does not, however, necessarily determine the case, as the indictment may be amended by striking out one count. Gen. St. c. 111, § 7; State v. Wood, 13 Minn. 121, (Gil. 112.) 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.

2. 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.

3. 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 when 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 v. Ramsden, 2 Car. & P. 603; Hardy's Case, 24 How. St. Tr. 824; Merrill v. I. & O. R. Co. 16 Wend. 600; 1 Greenl. Ev. 466.

4. 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.

5. 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. Section 10, c. 114, Gen. St. enacts that "the court may order a view by any jury impaneled 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 be informed on this subject, he should have requested the court to give the necessary directions.

6. 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 sixth 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...