The Town of Collinsville v. Scanland

• Decision Date: 31 January 1871
• Citation: The Town of Collinsville v. Scanland, 58 Ill. 221, 1871 WL 7906 (Ill. 1871)
• Parties: THE TOWN OF COLLINSVILLEv.LEWIS W. SCANLAND.
• Court: Illinois Supreme Court

58 Ill. 221

1871 WL 7906 (Ill.)

THE TOWN OF COLLINSVILLE

v.LEWIS W. SCANLAND.

Supreme Court of Illinois.

January Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. JOSEPH GILLESPIE, Judge, presiding

Mr. DAVID GILLESPIE, for the appellant.

Messrs. DALE & BURNETT, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was a suit to recover a penalty for violating an ordinance of the town of Collinsville, in suffering hogs to run at large, within the corporate limits of said town, on the 12th day of June, 1870.

The defendant was found not guilty, and the town took this appeal.

The following are the sections of the town ordinance bearing upon the subject:

“Sec. 1. That, hereafter, the running at large of any hog, shoat, or pig, within the corporate limits of the town of Collinsville, is hereby declared a nuisance, and is prohibited.

Sec. 2. That any person being the owner of, or having the care or custody of, any hog or hogs, shoat, or pig, who shall suffer the same to run at large, in violation of section one of this ordinance, shall be subject to a penalty of not less than five dollars nor more than fifteen dollars. Sec. 3. That, hereafter, any hog, shoat or pig, found running at large, as aforesaid, shall be seized and penned up by the town constable, or some one authorized by him, in some secure place, to be designated by the board of trustees, and, while so penned up, the town constable shall furnish them food and water.”

The remaining sections relate to the disposition of the animals taken up, and are not material here.

The following instruction was given for the defendant:

“Before the jury can find the defendant guilty, they must believe, from the evidence: 1st--That defendant's hogs were running at large within the corporate limits of the town of Collinsville; and, 2d--That said hogs were so running at large within the corporate limits of said town by the sufferance of the defendant. Although the jury may believe, from the evidence, that the defendant's hogs strayed from their usual place of running, into and within the corporate limits of the town of Collinsville, yet, if the jury further believe from the evidence that they were so running within the corporate limits of said town of Collinsville without the knowledge or sufferance of defendant, they will find the defendant not guilty.”

The plaintiffs then moved the court to instruct the jury as follows, without the italicized portion, viz:

“The court is requested to instruct the jury, that if they believe, from the evidence, that the defendant, Scanland, suffered his hogs to run at large outside of the corporate limits of the town of Collinsville, with the expectation that they would run at large within the corporate limits of the town of Collinsville, and they came within the limits of said corporation by reason of their being so permitted to run at large outside of the limits of said town, that then the said defendant has suffered the said hogs to run at large in said town, within the meaning of said ordinance, and they must find him guilty and assess a penalty within the provisions of the ordinance;” which was modified by the court, by adding to it the italicized portion, and, as modified, said instruction was given to the jury. To the modifying of said instruction by the court, the plaintiff at the time excepted.

The errors assigned are, that the verdict was contrary to the evidence, and that the court erred in giving the instructions, and refusing the plaintiff's instruction as asked.

The testimony shows, that the defendant's hogs were at large within the corporate limits of the town of Collinsville, on the 12th day of June, and were accordingly taken and penned up by the town constable; that defendant...