Crippen v. People

• Decision Date: 04 May 1860
• Citation: 8 Mich. 117
• Court: Michigan Supreme Court
• Parties: Lorenzo D. Crippen v. The People

8 Mich. 117

Lorenzo D. Crippen v. The People

Supreme Court of Michigan

May 4, 1860

Heard April 11, 1860 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Branch circuit, where defendant was indicted for causing a public nuisance, by keeping up a mill-dam across the Coldwater river, at a place called Hodunk, in Girard township.

From the bill of exceptions in the case, it appears that when the clerk had drawn from the jury box the names of twelve jurors, "the counsel for the defendant being asked by the court if they had any objections to any of the persons so called as jurors as aforesaid, then and there inquired of the said persons, so called as jurors, touching their indifferences between the said people and the said defendant, and as to whether or not they or any of them had formed or expressed any opinion respecting the guilt or innocence of the said defendant of the charge contained in the said indictment; and upon such inquiry one of the said persons so called as jurors stated, among other things, that he had formed, and then and there had an opinion as to whether or not mill ponds in this part of the country with which he was acquainted are nuisances, when the water covers a large surface, and was filled with vegetable or other filthy or decayed matter; that he knows nothing of the dam or pond in question, and has formed no opinion concerning it.

"The defendant's counsel then asked the said juror, 'what is your opinion respecting mill-dams generally, in this part of the country? To which question the counsel for the people objected; the objection was sustained by the court, and the question was not allowed to be put; to which the counsel for the defendant then and there excepted.

"The defendant's counsel then objected to the competency of the said juror, that having formed an opinion as to whether mill-dams generally in this party of the country are nuisances, he was not an indifferent person between the people and the said defendant, and ought not to be sworn as a juror in this case. Which objection the court overruled, and the said person so called was sworn, and took his seat as a juror upon the trial of said indictment; to which the counsel for the defendant then and there excepted.

"And upon calling and impaneling of the said jury, the name of Lucius Beall having been called by the clerk, the said Lucius appeared and answered to his name, and was then and there, by and on behalf of the said defendant, duly challenged for cause, and having been then and there duly sworn to answer truly such questions as should be put to him touching his competency to serve as a juror in said cause, he, the said Lucius Beall, did there and then depose and swear (amongst other things) in substance and to the effect following, to wit: That he had formed, and there and then had no opinion, that mill-dams generally in this part of the country are nuisances, and create malaria, and thereby produce disease; that 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 is acquainted he believes to be nuisances, and that they produce disease; that he was acquainted with only three or four mill-dams in this section of the country, and he believes that all the mill-dams with which he is so acquainted are nuisances, and produce disease and sickness. That he is not much acquainted with the dam and pond in question in this cause; that he has seen said dam and pond, and has passed near the same, but never noticed it particularly; that he knew very little about the dam or pond in question, and has neither formed nor expressed any opinion about the matter.

"The defendant's counsel then objected to the said Lucius Beall as a juror in said cause, for the reason that it appeared that he was not indifferent between the people and the said defendant, and insisted that good and sufficient cause for challenge to the said Lucius Beall had been shown, and thereupon moved the court that the said Lucius Beall be set aside for cause shown; which objection and motion were there and then overruled and denied by the court, and the court there and then decided that no cause for challenge to the said Lucius Beall had been shown, and that he was a competent and proper person to be sworn and serve as a juror upon the trial of said cause; to which decision and ruling of the court the counsel for the defendant then and there excepted."

The jury having been sworn in the case, Orson Randall, among others, was called as a witness for the people, and on his cross-examination testified that he "had learned that a civil action had been commenced in his name, against the defendant, by Mr. Coe, as attorney, for flowing witness's land. Had given orders to have a suit commenced, but did not mean to have it commenced so soon. Did not know that the civil suit had been commenced until the former trial of this cause, in June, 1855. The civil suit has been pending since before the finding of this indictment. There were several other suits commenced by other parties, against the defendant, for flowing land, about the same time, as witness has understood."

The counsel for the defendant then asked the witness "was there any agreement between you and other persons who have brought such suits against the defendant, to suspend the prosecution of them until this suit should be decided?" Which question was objected to by the counsel for the people, and the objection sustained by the court, and the defendant's counsel excepted.

The defendant's counsel then offered to prove by this witness, that after the commencement of the civil suits spoken of by witness, against the defendant, there was an agreement or understanding entered into between the several plaintiffs in such suits (including the witness), to the effect that the prosecution of the civil suits should be suspended, and that they should procure the finding of this indictment, and carry it on to judgment, and thus get the defendant's dam removed; which proposed proof was objected to by the counsel for the people, and the objection sustained by the court, and the defendant's counsel excepted.

After the prosecution had rested, defendant gave in evidence the record of the case of The People v. William Aldrich, Hiram Shoudler and Martin Barnhart, indicted in said circuit court for nuisance, which record showed a trial and an acquittal, May 1st, 1846.

Henry C. Gilbert was then called, and sworn as a witness on the part of defendant, and testified as follows:

"I was the prosecuting attorney of this county in 1845 and 1846. I recollect the indictment found against this same dam; was prosecuting attorney at the time. There never was but one indictment found against this dam while I was prosecuting attorney. William Aldrich, Hiram Shoudler and Martin Barnhart were the proprietors of this dam, and they were the defendants in the former indictment."

The defendant's counsel then asked the witness, "what particular matters and questions were litigated upon the trial of the said indictment against the said Aldrich, Shoudler and Barnhart? To which the counsel for the people objected; and thereupon defendant's counsel stated to the court, that they proposed to prove, that on the trial of said Aldrich, Shoudler and Barnhart, the question actually litigated was, whether the dam was or was not a nuisance, and that no question about the ownership or occupation of the premises by the said Aldrich, Shoudler and Barnhart was raised or made on said trial, nor any other question except that of nuisance or no nuisance. But the court sustained the objection to such evidence, and defendant excepted.

The proof being closed, defendant's counsel requested the court to charge the jury, among other things:

"That the record evidence of the trial and acquittal of the proprietors of this same dam, upon a former indictment for nuisance, is competent evidence of the fact that, at the time, said dam was not a nuisance, and that if the jury believe from the record that the dam was not a nuisance at that time, they must be satisfied from the evidence that it has become a nuisance since, by means of some change in its condition, or in the manner of using it.

But the court charged that the verdict on the trial of the indictment against the former owners of the dam had nothing to do with the present trial; that the question for the jury in the present one was, whether the dam was a nuisance while in possession and under the control of the defendant, as charged in the indictment. To which charge exception was taken.

The jury having found defendant guilty, a motion was made for a new trial, based in part upon causes shown by affidavits,...