source: Caselaw Access Project

author: By the Court, Daniels, J.:

license: Public Domain

text:
    Supreme Court. Erie General Term.
    November, 1865.

      Grover, Daniels and Marvin, Justices.
    Charles Carrington, Plaintiff in Error, v. The People, Defendants in Error.
    All who confederate together for the commission of a felony, and are present aiding and assisting in its perpetration, are, in judgment of law, equally guilty of the felony committed.
    Where on a trial for murder there was some evidence tending to show that the prisoner had combined and agreed with others to commit a burglary, and to take the life of any person attempting to prevent the commission of the crime or to arrest them, and that one of the number, other than the prisoner, shot a policeman who was attempting to arrest him, it was held not to be erroneous for the court to refuse to charge “ that there was no evidence in the case which would authorize a conviction,” it being for the jury and not for the court to decide upon the sufficiency of the proof or guilt.
    On a trial for murder it is not erroneous for the court to charge the jury that they have a right to take into consideration all the evidence of the case, showing the acts and conduct of the prisoner previous to the commission of the alleged offense as well as the testimony of the witnesses speaking directly to Ms character, for the purpose of determining what his character was.
    The prisoner was indicted, tried and convicted of the crime of murder, for killing George Dill, on the morning of the 10th January, 1865, at the house of Mrs. Cooley, on Oak street, in the city of Buffalo. Mrs. Cooley was sworn and examined as a witness upon the trial, and testified that she was awakened between two and three o’clock in the morning by a noise at her front door, and then got up and looked out of a window and discovered footmarks in the snow, and a window opened which was closed and fastened when the inmates of the house retired for the night. She then gave the alarm, saying a man was in her house, and in a few moments saw a man pass around by a corner window to the front of her house. Very soon afterwards twoi of the night police were upon the sidewalk in front of the house, and as one was in the act of stooping, to jump over the fence into the lot in which the house stands, the man on the inside fired a pistol shot, the ball from which took effect in the head of the other policeman, producing his death in a very few moments.
    Other policemen were brought to the place of the homicide in a few moments afterwards, who followed the footmarks of the man who had stood at the corner of Mrs. Cooley’s house when the pistol was fired, from that point across the block to Ellicott street, and down that street to near the lower end of the block, where they found the tracks passed into the dwelling known as No. 99 Ellicott street.
    The prisoner was soon afterwards arrested. In the meantime his clothing had been partially changed. Upon finding the clothing the prisoner had taken from his person, the lower portion of his pants and his boots proved to be wet. One of his boots was then tried in the tracks found in the snow, which was wet and upwards of a foot deep, and found to correspond with them exactly.
    Other evidence was given of the conduct and conversation of the prisoner at the time of his arrest, tending to establish the fact of his identity with, the man who fired the pistol from' the corner oi Mrs. Cooley’s house. A pistol with a single barrel was found in one of the pockets of the prisoner, but it was not of the proper calibre to carry the ball found in the head of the policeman,, and which, caused his death.

      Hattie Robinson was sworn and examined as a witness for the prosecution, and in the course of her evidence testified: “ I saw the prisoner at Rose White’s the night Dill was killed; there were two men with him, one of whom I knew; I have seen the man since; Givens was one of the party; they were there after two o’clock; it was a house of ill fame.

      Louisa Lecher, another witness for the prosecution, testified that she saw the prisoner at Gillig’s Hall, between ten and twelve on the night in question.

      Mary Hale, a witness for the prosecution, testified: “I was at Dell Davis’s, and saw the prisoner on the night of the murder; I saw him January 10, between eleven and twelve; there were two others with him; one of them I saw here as a witness on the other trial; they came in and wanted some ale; I gave them none because I thought they had no money; Charley wanted me to change a ten-dollar bill; he took out a handkerchief and a pistol, or revolver, which he pointed at me, and said they wanted the ale; they said they were going to take the rounds and go to Mrs. Cooley's and Miss Ballon’s, and asked where the girls were; I said at Gillig’s Hall; they said they' guessed they would go around there; three of our girls were gone; I was in a house' of ill-fame.”

      Frances McDowell, a witness for the prosecution, testified: “I lived at Em. Snow’s in January last, and have seen defendant there often. He was there the night of the murder. Givens and he were ■ there about twelve o’clock, and a second time about two o’clock that night. I think the second time was between one and two; there were three of them both times. I was at a house of ill-fame.”
    It also appeared that Mrs. Cooley’s house was a house of ill-fame.

      Levi 8. Givens was sworn and examined as a witness for the prisoner. The material portions pf his testimony are as follows: “ I remember the night of the murder; I saw the prisoner on that night from seven or eight o’clock in the evening' until nearly three in the morning; I left him ■ at the corner of Ellicott and Huron streets; I went home to the corner of Main and Genesee streets, and went to bed; Mrs. Auld lived at 99 Ellicott street. After I left prisoner, I saw him until he was nearly home, to the next block this side of No. 99. We‘were at the beer gardens at eighteen or twenty minutes to three; went from there to Em. Roe’s; I heard the clock strike three as I got into bed; Skidmore and the prisoner went down Ellicott together, and I supposed he was going to stay with Charley.”
    On his cross-examination he testified: “We were all three to meet at Fox’s billiard saloon; I got supper at Mrs. Auld’s. When we went to play billiards, the tables were full, so we went to Carr’s Melodeon; we stayed there, I should think, half an hour; from there we went to Fox’s again and stayed until nearly ten o’clock, I should think, or, in fact, nearly eleven; then we all came up and stopped at a saloon somewhere, I can’t tell exactly where, where we drank some beer; this was after eleven o’clock; then we went to Em. Snow’s, where we had a bottle of ale and remained fifteen or twenty minutes; after which we left for Rose White’s, stayed there perhaps for ten minutes and then went to Gillig’s Hall; in' going, we stopped at Dell Davis’ instead of Rose White’s; when we left Gillig’s we came to Rose White’s and saw one or two girls besides Rose, one of whom was Mary Hall; here we had a glass of beer and a sandwich; from there we went to Genesee street, to the beer garden, between Genesee and Huron or Washington, and from there to Em. Roe’s, and from there to the corner of Huron and Ellicott streets. I did not have a pistol on that night; I had a revolver with me when I went home, and left it at home after that; I owed Robert Auld, and gave him the revolver.”

      Robert Avid, a witness for the defence, testified: “ I know the prisoner and Givens; the latter boarded at my father’s and I saw him on the morning of the 10th; he came in about three; I asked him what time it was, and he said a little after three.”
    On cross-examination he said: “ Givens gave me a revolver, which I let Mr. Burt take; I don’t know whether there were five or six loads in the revolver; there was one gone when I got the revolver the next morning.”
    On a subsequent examination he states that he received the pistol a day or two after the murder.

      James Auld was sworn and testified that the prisoner entered the house where he was arrested about three o’clock in the morning, and that on the night before Skid-more slept with him.

      Patrick Smith was sworn and examined on the part of the prosecution, and was shown the pistol produced by Mr. Burt, and the hall taken from the head of the policeman.- He said: “I should think that if this cartridge was in shape it could be used in this revolver; it is the right sized hall for this pistol.”

      John Mittler, the policeman who was with Dill when he was killed, testified: “ I went down Ellicott and found another track a little below on Ellicott, near Batavia; this was a larger track than that through Cooley’s yard, or through the vacant lot.”

      John Swartz, another policeman, testified: “ I was sent down towards Batavia street; found a big track coming from the street to the sidewalk; I followed this track on Batavia street.”

      Michael Hoffman, who was sworn and examined on the part of the prosecution, testified: “ I found Dill dead, and was sent for the doctor; I went to Dr. Weiss, on Batavia street, between Ellicott and Oak; while I was there I saw a man coming down Ellicott, in the middle of the street, who crossed Batavia to Sargent’s, rapped on the door, and said he wanted to come in; he went off up Batavia to the Park.”

      Charlotte Sargent testified: “I remember the night that Dill was killed; I lived at lío. 17 Batavia street; a man called at my house that night; he was swearing; this was between two and three o’clock in the morning; my house was searched in about fifteen minutes after the man left my door; it was not Carrington.”
    It was also shown that Givens’ boot was longer and wider than the prisoner’s.
    The prisoner’s counsel moved to strike this evidence out. The motion was denied and an exception taken. The counsel for the prisoner also objected to the evidence given by the witness Kobert Auld, that Givens gave him a revolver which he let Burt take, and excepted to the ruling of the court allowing the evidence. Further evidence was given upon the trial for the purpose of proving that the prisoner sustained a good character.
    The Court charged the jury that they had a right to take into consideration all the evidence in the case, showing the acts and conduct of the prisoner previous to the commission of the alleged offense, as well as the testimony of the witnesses speaking directly to his character, in determining what his character was. To which the prisoner’s counsel excepted.
    The Court also charged the jury that if two or more persons combined to commit a burglary and armed themselves with pistols, agreeing with each other that they would kill any one endeavoring to prevent or obstruct them in committing the crime, or attempting or endeavoring to arrest them while engaged in its perpetration, and, while so engaged, any one of them should murder a person endeavoring to arrest them, all who had so agreed and combined, and were personally present, aiding and assisting the person killing the deceased, would be guilty of murder. To which the- counsel for the prisoner excepted. His counsel also requested the court to charge that there was no evidence in this case that would authorize a conviction of the prisoner upon the ground that he had combined with others to commit the crime, or upon the ground of the joint commission of the offense by the prisoner and other persons. The court refused and the prisoner’s counsel excepted.
    From the judgment entered on the verdict a writ of error was brought on behalf of the prisoner.

      G. Parsons, for prisoner.

      C. C. Torrance (District Attorney), for the people.
   By the Court, Daniels, J.:

No question was made upon the argument of this cause but what the general proposition contained in the charge, that all who confederated together for the commission of a felony, and were present aiding and assisting in its perpetration, were in judgment of law equally guilty of the felony committed.

But it was earnestly maintained that the evidence in this case would not, in any view of it, bring it within the application of that principle, and that it was error therefore in the court to withhold the instruction requested from the jury. If they believed—as it will appear from the extended statement already given of the evidence they very well might have done—that the pistol was fired by the hand of the prisoner, then the proposition involved in the request to charge would be of no practical consequence in the case; for if he was the person who did fire it, the offense committed by doing so would be precisely the same whether he acted alone or in concert with others who were present to render him aid and assistance. His crime would be murder in either case, if he intended to produce the death of the person who was shot. In order to reach that conclusion the jury would of necessity have to be satisfied that the prisoner had the possession at that time, and used, the revolver afterwards found with Givens; for the pistol found with the prisoner was shown to be incapable of discharging the ball. But as the evidence stood upon the trial, there would not seem to be any great difficulty in arriving at the presumption that the prisoner did use this revolver, and found ready means at hand to transfer it to Givens, which he would naturally be disposed to do in order to avoid as far as possible all direct indications of his guilt.

If, however, the jury were not satisfied that he used the revolver, then it would be an important inquiry in the case whether any other person did who was acting in concert with him. And it is in view of that contingency that the question raised by the request to charge becomes important. The court would not be justified in giving the instruction to the jury, which the request required, unless there was such an entire absence of evidence before them as to leave no ground for discussion or deliberation upon the subject. It is a familiar principle in our jurisprudence, that the jury shall determine all questions of fact presented in the controversy submitted to their deliberation, even though the evidence upon which they arise may be slight and in a great measure unsatisfactory. The law regards the court as possessing no superior qualifications over the jury for the determination of mere questions of fact.

The principal evidence in the case tending to show that the homicide in question was committed by some person with whom the prisoner acted in concert, and who was aided and abetted in the aet'by him, is that which shows that the prisoner Skidmore and Givens were together by appointment on the night when it happened. And after they came together they attended places of amusement and entertainment, drank together, and visited various houses of ill-fame, and in that manner reached the portion of the night when, if at all, the crime afterwards committed could be committed with a strong probability that its perpetrators would escape detection. Their con duct during the previous portion of the night was jus such as would ordinarily be expected from persons who contemplated some offense upon the person or property of another. And in the course of their wanderings they are sworn to have announced their intention to visit the house where the crime was soon afterwards committed. Whether they made such a statement or not was of course a question for the jury. If they did, it would indicate the probability that they did not separate, as Givens said they did, on the corner of Huron and Ellicott streets, which was the opposite side of the block from Mrs. Cooley’s house, but that they continued together until they reached her house. The same probability is increased by Givens’ possession of the revolver, the circumstance that one cartridge had been discharged from it, and that he very soon afterwards was anxious to divest himself of. it, and actually did transfer it to the possession of another person. And added to that is the fact that some person other than the prisoner was discovered very soon after the homicide on the other side of the block, who passed down Batavia street and was then seen running and endeavoring to secure shelter or concealment in a house very near at hand. Besides, it may well be asked, why were these three persons together on the corner in the immediate vicinity of the place where the homicide was committed, concededly, within a very few minutes before its perpetration ? Eor if it had been afterwards, they would have heard and known something of it, and probably have been seen and identified by some members of „the police force who were on their way to the place where the crime was committed, and in search of its perpetrators. Then, again, if they contemplated no outrage on the property or person of any other, no explanation is given of their conduct in arming themselves with and carrying along with them the deadly weapons found to have been in their possession. A rational explanation of that circumstance would be that they were intended for use, by way of assault or defense, as either might become necessary to overcome resistance or secure escape. A jury most certainly would be at liberty to attribute such an intention to these persons on the night in question. When all these circumstances are considered together, it must become obvious to every one that the evidence in the case was of such a character as to render the instruction requested manifestly improper.

The evidence showing that Givens had a larger foot than the prisoner, tended in 'some degree to show that he might have been the person seen upon Ellicott and Batavia streets, who sought admittance into the house of Mrs. Sargent. Every circumstance, however slight, which had a tendency to connect him as a principal with the homicide, was proper to be submitted to the consideration of the jury; for if they were not satisfied that the prisoner himself inflicted the mortal wound, the inquiry was very naturally suggested by the circumstances, whether Givens did not do it, in compliance with a common understanding or purpose existing between him and the prisoner, and in the presence, actual or constructive, of the latter. In cases of this nature, where the prosecution is more dependent upon circumstances to make out the case than perhaps in any others, nothing should be withheld from the jury that in any reasonable view will aid in the development of the transaction. If it could have no effect in that direction, then it was so entirely immaterial as to be incapable of producing any injury whatever to the prisoner.

As to the evidence which was given showing the disposition made of the pistol, which was proved to be capable of discharging the ball that was used, it was so clearly pertinent that no time will be consumed in its consideration.

The remaining exception was taken to the charge of the court respecting the evidence of character. The prisoner’s counsel is quite right in saying that the circumstances proved upon the trial which exhibited. the prisoner’s conduct, associations and habits on the night in question, could not have been given in evidence for the mere purpose of affecting his' character. But they were material as evidence in other respects, having a bearing upon the probability of the prisoner’s guilt, and as such were entitled to the consideration of the jury. Their full bearing in that respect could not be very well given to them without bringing them directly in conflict with the evidence of the prisoner’s character; and so far as that was the case, they would very much weaken the effect of that evidence in the consideration of the jury. But that species of evidence is always liable to be overcome in the same manner in every case where it is given. The circumstances proved to establish the guilt of the accused in every case affect his character; and where they clearly indicate guilt, their effect is so great that proof of good character is of little or no consequence. In all these cases the circumstances could not be proved for the mere purpose of affecting the character of the accused. But they are of the very gist of the issue, and as such the accused must be prepared to meet them; and when thus proved, the jury may very properly give such effect to them, in all respects, as in any view of the evidence they are legitimately entitled to. Evidence of character is always given for the purpose of leading the jury to doubt the effect which the other circumstances proved would otherwise be likely to have upon their minds; and, as such, it must be considered with those circumstances, and where they are of such a character as entirely to overthrow it, that evidence can have no effect at all. Whenever it is given, it must be considered, not by itself, but in view of all the other facts and circumstances appearing in the proof.

The judgment should be affirmed.


author: By the Court, Daniels, J.

text:
    Supreme Court. Erie General Term.
    February, 1867.
    Daniels, Marvin and Davis, Justices.
    Samuel H. Taylor, Plaintiff in Error, v. The People, Defendants in Error.
    On the trial of an indictment for nuisance, evidence of the condition of the premises in question, after the finding of the indictment, is not admissible. But a judgment will not be reversed on the ground of the admission of such evidence, if it appears from the bill of exceptions that it could have caused no legal injury to the defendant.
    To convict of nuisance, it is not necessary to establish: any criminal intent..
    It is no defense to an indictment for nuisance that the slaughter-house alleged to constitute it was built remote from habitations and public roads, and that the persons suffering from it afterwards built their dwellings within the reach of its stench or noisome effects.
    It is only where an indictment charges the business itself to be a nuisance, and avers its continuance, that a judgment can be given, on conviction, enjoining the defendant from continuing the business.
    The plaintiff in error was tried and convicted in the Court of Sessions of .Orleans County, upon an indictment charging him with the offense of creating and maintaining a nuisance. The indictment contains two counts. The first charges that the plaintiff in error on the 1st of April, 1866, and on divers days and times between that day and the finding of the indictment, at the town of Barre, in Orleans county, unlawfully and injuriously did kill and cause to be killed divers large numbers of cattle, hogs, sheep, &c., near to the dwelling houses of divers persons then and there inhabiting the same houses, and near to a certain public road and highway, over and upon which large numbers of persons daily pass and repass. And that he unlawfully and injuriously did cause' and permit the skins, flesh, bones, blood, entrails, &c., of said cattle, sheep, hogs, &c., to be .and remain near to the said dwelling houses, and near to the said public road"and highway, for a long space of time, to wit: for the space of one month; whereby divers noisome and unwholesome and offensive smells did then and there arise from the said skins, flesh, bones, blood, &c., so that the air was then and there greatly corrupted and infected thereby, to the great damage and common nuisance of, &c.
    The second count charges that the plaintiff in error, on the 1st of April; 1866, and from thence until the finding of the indictment, near to the said dwelling houses and highway, certain buildings, barns, pens, outhouses, yards and grounds for the purpose of slaughtering and preparing for market hogs, sheep, &c., before that time erected, set up and enclosed, by certain persons to the jurors aforesaid unknown, unlawfully, wilfully and injuriously did continue, and yet doth continue, and within and upon the said buildings, barns, &c., willfully, unlawfully and injuriously did kill and cause to be killed divers large numbers of cattle, hogs, sheep, &c., and within and upon the said buildings, &c., willfully, unlawfully .and injuriously did cause and permit the skins, flesh, bones, blood, &c., of and from the animals so killed to lie and remain for a long space of time, to wit: for the space of one month; whereby divers noisome, offensive and unwholesome smells did then and there arise from the said skins, flesh, bones, &c., so that the air was then and there greatly corrupted and infected thereby, to the great damage and common nuisance of all the good and lawful citizens, &c.
    The prosecution proved that the plaintiff in error owned a piece of land at the west bounds of the village of Albion, on which he had kept and occupied a slaughter house since the first of April, 1866—where he had slaughtered cattle, hogs, sheep, &c., for his meat market, kept and carried on in the village. That the slaughter house was situated within about five rods of a public highway, on which one hundred teams passed along daily. That a number of persons resided in the vicinity, and within from fifty to one hundred and twenty rods of the slaughter house. There were two other slaughter houses near that of the plaintiff in error. And that, from the first of April, 1866, to the finding of the indictment, the stench from the slaughter houses extended to the dwellings of those persons who resided in the vicinity—“ part of the time very bad; and in some cases the doors and windows had to be closed.” And that it was very offensive in passing along the highway. And, about the. middle of April, twenty-five loads of offal manure and putrid meats which had accumulated during the winter previous, were drawn from the defendant’s premises, during which the stench was much greater, making one man sick, who was working one hundred rods east of the slaughter house.
    The prosecution offered to prove the condition of the slaughter house premises from the finding of the indictment to the time of the trial. To this the plaintiff in error objected. The court overruled the objection, admitted the evidence, and the plaintiff in error excepted. Under this offer and ruling, the prosecution proved that the stench could be smelt at Ballard’s house—which was fifty-five rods east of the slaughter house—two days in each week, during the summer; and that it was generally as offensive after as before the finding of the indictment. The stench was spoken of by the witnesses as that proceeding from the slaughter houses, without distinguishing between them, which could only be done when the person was upon the lot of the plaintiff in error. The plaintiff in error gave evidence tending to show that his slaughter house and the premises around it were kept clean and wholesome; and that some of the houses, occupied in the vicinity, were erected after his premises were devoted to the business complained of.
    The court instructed the jury that if they concluded that the stench from the defendant’s slaughter house was offensive and disagreeable—a great nuisance to the neighbors, or to the passers-by on the highway—they should convict the defendant. To which his counsel duly excepted. The court also instructed the jury that they could only take into consideration the evidence concerning the condition of the premises after the finding of the indictment for the purpose of ascertaining the intent of the defendant, and not for any other purpose.
    The counsel for the plaintiff in error requested the court to instruct the jury that if the slaughter house was built remote from habitations and public roads, and the persons affected afterwards built their dwellings within the reach of its stench and noisome effects, he could not be convicted. The court declined so to charge, and the counsel for the plaintiff in error duly excepted.
    The jury found a verdict of guilty, on which the court pronounced judgment by way of fine, and also that the plaintiff in error be enjoined from continuing the business of slaughtering animals at the slaughter house described in the indictment; and that he be further ordered to remove and discontinue the nuisance of which he was found guilty, within sixty days, otherwise that a precept go to the sheriff requiring him to abate it at the cost of the defendant. Upon this judgment the defendant brought a writ of error to this court.

      John H. White, for the plaintiff in error.

      J. M. Thompson (District Attorney), for defendants m error.
   By the Court, Daniels, J.

The evidence which the court allowed to be given showing the condition of the premises in question, after the finding of the indictment and down to the time of the tial, should not have been admitted. It was entirely foreign to the issue the jury were to try, and would necessarily lead to a reversal of the judgment if it were not entirely certain that the plaintiff in error could not have been harmed by it. The court, in its charge, withdrew this evidence from the consideration of the jury, so far as it might have any tendency to establish the commission of the offense, leaving them at liberty to consider it only as bearing upon the intention of the accused. To this use of it by the jury, the plaintiff in error would have no reason to complain, because it was not necessary that the prosecution should satisfy them that any criminal intent whatever existed. If he had created and maintained a public nuisance, he was guilty of the offense charged, even though he had done so with the best intention. Whether the direction of the court to the jury to disregard the evidence improperly allowed to be laid before them would correct the error of admitting it, presents a more grave and difficult question. It was the opinion of Mr. Justice Paige, in the case of McNight v. Dunlage (1 Seld., 537), that it would; but the question was left undecided by the court. Other authorities might be given tending to countenance a different conclusion, but a reference to them is unnecessary in this case, because the bill of exceptions discloses another ground upon which the exception to that evidence may be satisfactorily answered.

The bill of exceptions contains a statement that the facts were proved, which it was claimed on the trial established the offense charged in the indictment. And if they were proved as so stated, they were not open to controversy or question by either the court or jury. The only question then arising would be as to their legal effect. If they were sufficient to constitute the offense in law, there was but one duty left to the court and jury, which was to convict the accused, and that, too, without reference to the other evidence that might have been given in the case. The facts which are stated as having been proved on the trial, and which, of course, were not open to question, were that the accused slaughtered animals for his meat market on the premises referred to, within the hounds of the village of Albion, distant from fifty-five to one hundred and twenty rods from the dwellings of the persons residing about there, within five rods of a highway on which one hundred teams passed every day, and that the stench extended to such dwellings and was encountered by the persons passing on the highway, and was so offensive sometimes as to require the doors and windows of the dwellings to be closed; and that offal, manure ,and putrid meat accumulated to such an extent during the winter that when it was removed in the spring the stench was much greater, rendering one man sick while at his work at the distance of one hundred rods from the slaughter house. It is not necessary to refer to authorities for the purpose of maintaining the legal conclusion that this was a nuisance within the well-settled rules relating to this class of cases. It clearly rendered the enjoyment of life and property uncomfortable and unwholesome. And such being the state of the case prior to the time of finding the indictment, the proof of the condition of the premises of the accused after that, which certainly was shown to be no worse than before, could not have worked any legal injury to him. And the admission of that evidence, although a legal error, presents no substantial ground for reversing the judgment. (Shorter v. People (2 Comst., 193.)

The supposition that persons who erect and occupy their dwellings where they may be affected by a nuisance already erected and maintained, have no legal right to complain of the annoyance it may occasion them, seems to have been derived from what was incidentally and unnecessarily said by Abbott, Ch. J., in the case of Rex v. Cross (2 Car. and Payne, 226). The case was decided at Nisi Prius, and this point was in no manner involved in it. And what was said upon it is in conflict with Orunden’s case (2 Camp. 89), and Sudley’s case (Sid., 168; Roscoe’s Crim. Evid.. 795); and with the decision of the Court of General Sessions of New York City, in the case of Lynch (6 City Hall Sec., 61). Such a doctrine would render the property of others subordinate to the purposes of him who might, before they had erected their dwellings, have devoted his own to an offensive and unwholesome business. There is no sound principle of law that will protect any man in thus depriving others of the substantial use and enjoyment of their property. A person erecting a nuisance upon his own property, when all other human habitations were so far removed from it as not to be annoyed or disturbed by the nuisance, would not be indictable for the erection merely because others afterwards took up their residence within the reach of its noisome and unwholesome vapors; for while it annoyed no one it could not strictly and legally be affirmed to be a nuisance. But after the adjacent territory should become devoted to domestic or business uses, and the inhabitants should be disturbed, annoyed and rendered uncomfortable by the continuance of the establishment, no good reason would exist for protecting the person then maintaining it from an indictment and conviction for a nuisance on account of such continuance. While an offensive or unwholesome trade or business is carried on at a point so remote from others as in no manner to affect or disturb them, the pursuit is lawful; but it necessarily becomes unlawful whenever the adjacent owners may so far. devote their own property to the purposes of business or residence as to render its continuance incompatible with such purposes. This necessarily results from the legal principle which secures to all the right of devoting their property to the ordinary uses to which property is appropriated. Hence, when one person makes such a use of his property as will preclude others who are near him from deriving any substantial benefit or enjoyment from that which they possess, the law wisely intervbáes and prevents it, for the promotion of the general good. And that intervention is as necessary and justifiable whether the act requiring it consists of an unlawful maintenance and continuance only, as it is where an uhlawful creation or erection of the disturbing cause is added to that. The exception taken to the refusal to charge must therefore be overruled.

But as to that part of the judgment which enjoins the the accused from continuing his business, and directs the abatement of the nuisance, different considerations are presented. It is only where the indictment avers a continuance of the nuisance, and where it shows the business itself to be of that character, that a judgment like that rendered in this case can be proper. (Rex v. Pappineau, 1 Strange, 678; Munson v. The People, 5 Parker, 16.) The indictment in this case does neither. It avers that the plaintiff in error unlawfully and injuriously slaughtered his animals at the slaughter house in question, but not that any annoyance or disturbance of the public was caused by that. It was from the offal and other refuse material which he caused and permitted to be and remain near the dwellings and the highway that the unwholesome and offensive stenches are averred to have arisen, which corrupted and infected the air, and created the nuisance under this allegation of the offense. The court had no power whatever to restrain the plaintiff in error from continuing the business of slaughtering animals at his slaughter house. And the cause which is thus alleged to have constituted the nuisance is averred to have remained a long space of time, to wit: for the space of one month; which by no rule of construction, however liberal, can be held to aver a continuance of the nuisance beyond that. From this manner of charging the offense, it is clear that the record furnishes no ground on which that part of the judgment can be maintained which enjoins the plaintiff in error from continuing the business of slaughtering animals at his slaughter house, and which directs the abatement of the nuisance. The case was one for fine and imprisonment, or either, as the court deemed proper, and for nothing beyond that. So much of the judgment as directs an abatement of the nuisance, and enjoins the plaintiff in error from continuing his business, should be reversed; and, as so modified, the judgment should then be affirmed.


author: Daniels, J.

text:
    Supreme Court. Erie General Term,
    September, 1865.
    Grover, Marvin and Daniels, Justices.
    The People v. Louis Zeiger.
    It is the duty of a jury to find a verdict upon the evidence given on the trial, and upon that alone, without any addition to it or modification of it, arising out of the peculiar scientific acquirements or actual knowledge of facts in controversy possessed by the jurors or any of them, though the weight and credit of such evidence should be judged of by them in the light of their own experience.
    “ Lager beer ” falls within the term u intoxicating liquors,” if the use of it is ordinarily or commonly attended with entire or partial intoxication; and whether such is the fact, is to be decided by the jury upon the evidence in the case. Grover, P. J., dissenting.
    The defendant was indicted, tried and convicted before the Court of Sessions of Niagara county, for a misdemeanor. Certain exceptions were taken by him to the rulings of the court upon the trial, and the proceedings were stayed, and brought before this court by writ of certiorari. The indictment charged the defendant with a violation of the Excise law, in selling various kinds "of strong and spirituous liquors without license, and among them lager beer. He admitted that he had sold lager beer by the glass, to be drank on his premises, at the town of Niagara, in Niagara county, without license. Evidence was given upon the trial tending to show that in some instances intoxication had been produced by drinking this quality of beer; and, upon the part of the defense, tending to show that it was incapable of producing intoxication. After the evidence was through, the defendant’s counsel requested the court to instruct the jury that lager beer was not a strong or spirituous liquor, within the meaning of the statute; and that its sale without license, in quantities less than five gallons, was not a criminal offense. The court declined to charge as requested, and the defendant excepted. The defendant also requested the court to instruct the jury that the evidence was not sufficient to justify his conviction, which the court declined, and the defendant excepted. The court charged the jury that they were to use their own knowledge and science, if they possessed any applicable to the case, to determine the question. To this part of the charge the defendant excepted.

      M. M. Southworth (District Attorney), for the people.

      Cyrus E. Davis, for the defendant.
   Daniels, J.

It was the duty of the jury empanneled to try the defendant, to find a verdict upon the evidence given in the course of the trial, and upon that alone. Of course its weight and credit should be judged of by them in the light of their own experience, but that should be done without any addition to it or modification of it, arising out of the peculiar scientific acquirements or actual knowledge of the facts in controversy, by any one or more of their number. The law is imperative in requiring oral evidence, given upon the trial of civil and criminal cases, to be detailed under the solemnity of an oath, properly administered to the witness, and without any distinction in the character of the information to be conveyed, whether it consists in the deductions of science or the knowledge of facts. The universal prevalence and application of this rule excludes jurors from communicating to others for the purpose of influencing their conclusions, the knowledge of any facts and the existence of any .scientific opinions bearing upon the questions submitted to their decision. If a juror has acquired knowledge con-corning the circumstances of the case, or has formed, scientific conclusions bearing upon the controversy pending before the jury, and important for the other jurors upon the panel to know, it is his duty to be sworn and examined the same as any other witness in the case, and under the responsibilities of his oath to state the facts known to him, or the opinions formed by him, in the presence of the parties. This is required by two prominent considerations: 1st. That the evidence shall be given under the sanction of an oath. 2d. That the parties may have an opportunity of knowing on what evidence the jury are to act; and a juror who should, after the jury have retired to their deliberations, avail himself of the opportunity of adding to or detracting from the evidence by means of his own peculiar knowledge of any of the circumstances attending the transaction submitted to their consideration, would not only violate his duties, but he would also be utterly unfitted for the position he was called upon to occupy. It is not probable that the learned judge who presided at the trial of the defendant inténded to give the jury any such liberty as this, though it may very well be, from the general language used in the charge, they may have so understood and acted upon it. The instruction was that they were to use their own knowledge and science, if they possessed any, applicable to the case, to determine the question. That obviously was whether lager beer was an intoxicating liquor, for that was the only question to be settled by the verdict. This was clearly error, and as it may have improperly influenced the conclusion of the jury, a new trial should be granted.

But, as the question will necessarily arise upon another trial of the defendant, whether, under the evidence, a criminal offence is proved, it will not be improper to examine that at this time. That is the most important question involved in this case, and it is not without interest to a very considerable portion of the community. The inroads which the use of intoxicating liquors has always made upon the public health and morals, and their prominent agency in the production and commission of crime, have rendered the traffic in them a very proper subject for legislative consideration. These consequences are usually found to follow from the sale of liquors in public places, and in small quantities, where they are readily accessible, and tempt the habits or appetites of those inclined to indulge in their use. On this account it has been the legislative policy of this, as well as other States, as it was of the colonies before them, to impose restrictions upon the public sale of liquors in small quantities, including all under five gallons, and to commit such sales to persons of known integrity and responsibility. How far the latter duty is observed by the bodies to which the execution of the law is in part confided, it is not necessary at this time to inquire, for the point now presented for consideration affects not the policy but the true construction of the law.

The statute prohibits the sale of strong or spirituous liquors or wines in quantities less than five gallons at a time, unless the seller has a license therefor. (2 R. S., 5th ed., 942, § 14.) And it' describes the prohibited subjects in various phrases, each apparently in the intention of the Legislature being of the same signification. In other sections of the act they are designated by the terms “strong or spirituous liquors,” “intoxicating liquors,” “ intoxicating liquors or wines,” and “ intoxicating "drinks.” A very complete analysis of the statute in this respect will be found in the opinion of Justice Welles, in the case of The Board of Coms. of Tompkins Co. v. Taylor (21 N. Y., 176-7). This statute is more comprehensive in its prohibitions than the one found in the Revised Statutes of 1830, and-which for many years continued without material alteration to be the law of this State; for by the terms of that statute the sale of metheglin, currant wine, cherry wine and cider was in no manner interfered with or prohibited. (1 R. S., 681, § 29.) This was an important exception, indicating it to have been the conviction of the Legislature that the articles excepted might otherwise be included within the description of “strong or spirituous liquors or wines,” which were the terms then used as descriptive of the subjects the statute was intended to operate upon. That exception was not incorporated into the present law; and the omission to retain it clearly indicates the legislative intention to have been to make the present law more general than the previous statute in its restrictions upon the sales of intoxicating liquors. All liquors are now comprehended within its term, whether distilled or fermented, which properly fall within the legal signification of the words “ intoxicating liquors,” or “intoxicating drinks.” And the extent of that legal signification, unaffected by exceptions or restrictions, is the inquiry now presented for consideration. In the proper prosecution of it the words are to receive their ordinary popular meaning. Except that so far as their import may be doubtful or uncertain, the doubt or uncerainty should be solved favorably to the defendant; for the legal and settled rule of construction applied to penal and criminal statutes is, that they shall be construed strictly, and not extended beyond their plain and obvious meaning, so far as they declare what acts shall constitute an offense. (U. S. v. Morris, 14 Peters, 464; Schooner Nymph, 1 Sumner, 516, 518; Watervliet Turnpike Co. v. McKean, 6 Hill, 620.) The presence of alcohol in so slight a quantity as not to unduly excite the human system will not constitute an intoxicating liquor. Accordingly, the sale of fermented beer, without any more particular description of the article or of its effects, has been held not to be prohibited under the general prohibition of the sale of “strong or spirituous liquors or wines.” (Nevin v. Ladue, 3 Denio, 473.) And for the same reason the various kinds of domestic beer, known as spring beer, ginger beer, molasses beer, &c., have been held not to be included within the term used in the statute. (3 Denio, 450-1; Comrs. of Excise v. Taylor, 21 N. Y., 173.) The reasons given for excluding them from the comprehension of these terms are that “they were never considered as strong liquors or intoxicating beverages,” either because it was supposed the human stomach had not the capacity to contain a sufficient quantity of those kinds of beer, if they were properly made, to unduly or .injuriously excite the. person who used them as a beverage, or for the reason that those who were in the habit of using them never got intoxicated by such use.” (Per Walworth, Chancellor, in Nevin v. Ladue, supra.) As to the different descriptions of beer, therefore, which are not known to be capable of producing intoxication, considering the capacity of the human stomach, there is no difficulty in the way of declaring them to be excluded from the operation of the statute.

But as to lager beer, which from the evidence given in this case seems to be capable of producing occasional intoxication, the application of the statute is attended with more difficulty. The circumstance of intoxication following its use in very rare exceptional cases would be insufficient to characterize it as an inebriating drink; for if the question, whether the sale without license violated the statute, was made to depend upon that, then it would follow that what should be legally declared a criminal offense in one part of the State, would be an innocent act in others, depending entirely upon the local habitation of the person or persons capable of being thus affected. Under such a construction of the law, persons charged with its violation could only be. convicted when proof of actual intoxication of some one person had been produced by imbibing the liquor in question; and if no such person could be found when the prosecution was carried on, an acquittal would necessarily take place. While in other localities, where intoxication could be shown even in one instance to have followed the use of lager bier, all persons selling it without license in the quantities mentioned in the statute, would as surely be convicted. The Legislature could not have intended to declare an act to be a criminal offense where the effect of it was a matter of so much uncertainty, and where the criminality was made to depend, as it is in this case, solely on the effect produced by it. On the contrary, the general intent affecting this, as well as all other laws made to define and prohibit criminal offenses, is that the offense shall be so clearly described that the public will encounter no serious difficulty in discovering its distinguishing attributes. It should not require a minute and carefully-balanced scientific investigation to determine whether a given combination of circumstances does or does not constitute a crime; but the thing intended to be prohibited should be so definitely ascertained as to be within the comprehension of all persons possessing ordinary intelligence. And it is not to be supposed that the Legislature intended to act upon any different principle in this instance.

In this view of the statute, lager beer falls within the terms “intoxicating liquors,” if the use of it is ordinarily or commonly attended with entire or partial intoxication; if the use is not ordinarily or commonly attended with this effect, the sale of it without license is not embraced within the prohibition of the statute. It is not necessary, in order to constitute an offense under this statute, that persons ordinarily or commonly using the article should become intoxicated by means of the effects produced by it; for that is not the effect of using many other liquors conceded and assumed to be intoxicating. Whether intoxicating or not must depend very much upon the quantity used, and the sensibility of the stomach of the person using it. It is sufficient to constitute an offense under this statute that an ordinary effect found to follow the use of lager beer is entire or partial intoxication. If it frequently or ordinarily is attended with that result, then all the consequences are produced by it which render it a proper subject for legislative regulation. That will be sufficient to bring its sale in quantities less than five gallons without license within the rule already applied to the construction of this statute. (3 Denio, 451.) This rule, as it is stated in the opinion of Justice Welles, which was concurred in by a majority of the Court of Appeals, requires that the liquors, the traffic in which is regulated by the statute, shall be such as are “ known to be capable, when drank, of producing, and which generally” result “in partial or total intoxication.” He adds: “ It seems to me that but one safe and sensible line of distinction can be drawn between the different kinds of liquor containing alcohol, in order to determine upon which of them the statute was intended to operate, and that is between those which are capable of causing intoxication, and those containing so small a percentage of alcohol that the human stomach cannot contain sufficient of the liquor to produce that effect.” (Comrs. of Excise v. Taylor, 21 N. Y., 177-8.)

Whether, within the operation of the rule here maintained, the article in question is an intoxicating liquor, must depend upon the evidence given upon the trial. (The Peaple v. Hart, 24 How. P. R., 289.) And where that is ' conflicting, the conflict must be determined, as all questions of that nature are under our system of jurisprudence, by the jury. The conviction should be reversed and a new trial granted.

Marvin, J., concurred; Grover, P. J., dissented.

Conviction reversed and new trial granted.

Note.—Upon a subsequent trial of the defendant before the Court of Sessions, under the rule adopted in this opinion, the defendant was convicted; and that conviction was affirmed at the February General Term in 1868, by Daniels, Marvin and Davis, Justices.


author: Ingraham, J.

text:
    Court of Appeals. Albany,
    June, 1864.

      Denio, Oh. J., and Davies, Wright, Selden, Ingraham, Hogéboom, Mullin and Johnson, Judges.
    George Crichton, Plaintiff in Error, v. The People, Defendants in Error.
    A count in an indictment, which omits to state the time and place at which the alleged offense was committed, is fatally defective.
    A general verdict of guilty will he sustained, although there be a defective count in the indictment, if there he also a good count to which the evidence is applicable.
    Whatever is alleged in a count, which is not necessary to constitute the offense, may be rejected as surplusage.
    An averment in an indictment, descriptive of the offense charged, if made under a videlicit, cannot be rejected as surplusage.
    On the trial of an indictment for attempting to procure an abortion, evidence to prove that the prosecutrix, who had been examined as a witness for the people, had had sexual intercourse with ojher persons than the defendant, is inadmissible.
    The plaintiff in error was tried and convicted at the St. Lawrence County Court of Sessions of an attempt to procure an abortion.
    The first count of the indictment charged “that George Crichton, late of the town of Oswegatchie, in the county of St. Lawrence, heretofore, to wit: on the twenty-second day of June, in the year of our Lord one thousand eight hundred and sixty-one, with force of arms, &c., at the town of Oswegatchie, in the said county of St. Lawrence, and on divers other days and times, did then and there advise and attempt to procure, and did procure one Elizabeth Dixon to take certain medicines, drugs and substances, to wit: certain pills, known as “ Dr. James Clark’s Female Pills,” which the said George Crichton then and there produced for the purpose and with the intent of procuring the miscarriage of her, the said Elizabeth Dixon, she, the said Elizabeth Dixon, then and there being a pregnant woman, contrary to the form of the statute in such case made and provided.”
    The second count was as follows:
    “And the jurors aforesaid, upon their oaths aforesaid, do further present that heretofore, to wit: at the time and place aforesaid, one Elizabeth Dixon was then and there a pregnant woman; that the said George Crichton, for the purpose and with intent to cause and produce the miscarriage of her, the said Elizabeth Dixon, she being such pregnant woman as aforesaid, did advise and procure her, the said Elizabeth, then and there to take certain drugs, medicines, substances or pills to the jurors aforesaid unknown, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York.
    “ B. H. VARY, District Attorney.”

    The defendant pleaded “not guilty.”
    The trial took place in March, 1863, before William C. Brown, county judge, and the justices of the sessions.
    After the empannel.ing of the jury, the counsel for the defendant moved to quash and strike out the second count of the indictment, on the ground that it did not allege any time or place where the offense was committed. The court denied the motion, and the defendant’s counsel excepted.
    On the cross-examination of Elizabeth Dixon, the prosecutrix, she testified, among other things, that she had been'examined as a witness in proceedings in bastardy against George Crichton, as the father of her child. She was then asked the following question: “Did you not testify on that trial that you never had had sexual intercourse with any other man than George Crichton, and was he not discharged in those proceedings on the ground that he was not the father of your child?” The question was objected to by the district attorney and excluded by the court, and the defendant’s counsel excepted.
    George Lytle was called as a witness for the defense, and asked tlie following question: “ Did you have sexual connection with the witness, Elizabeth Dixon, frequently during the spring and summer of 1861?” This was also objected to and excluded and the defendant’s counsel excepted.
    The case was removed to the Supreme Court, where it was argued before Potter, Bocees, James and Roseebans, Justices, and'affirmed in January, 1864.
    The opinion of the Supreme Court was as follows:
    Bocees, J. I believe it to be well settled on principle and authority, that the place where and the time when the alleged offense was committed must be stated in the indictment. As regards the place, this is necessary in order to show jurisdiction, especially if the offense be made such by statute. It is declared to be essential to charge every issuable fact to have happened at some place within the county to which the venire may be awarded. {The King v. Hollará, 5 Term, 607; Barb. Oñm. Law, 280, 281, and cases cited; 2 Hale, 178, 180; Qhit. Orim. Law, vol. 4 pp. 193, 4, 5, and cases cited.) The reason of the rule is that it may appear that the offense was committed within the jurisdiction of the court. It is not necessary to prove the precise time and place as laid in the indictment, if shown to have occurred within the jurisdiction of the court, except when the place is the essence of the crime. (As to precision in indictments, see HasJdns v. The People, 16 H. Y., 344, '348-9; The People v. Allen, 5 Benio, 76; The People v. State, 5 Hill., 411; Manly v. The People. 7 NI Y, 295.) I think it very plain that the second count in the indictment is fatally defective, for the reason that it omits to state the place where the alleged offense was committed. The offense charged in this count is, that the prisoner advised and procured Elizabeth Dixon to taire certain drugs, &c., for the purpose and with the intent to «ause and produce a miscarriage. At what time and place such advice and procurement were bestowed is not averred. True, it is charged that he did advise and procure her, the said Elizabeth, then and there, to take, &c. But the words “ then and there” refer or apply only to the time and place when and where she should take the drugs and medicines; not to the time and place when and where he gave the advice. As is well said by the counsel for the prisoner, it does not appear but that the offense was committed in Canada or elsewhere, out of the jurisdiction of the court. Were this the only count in the indictment, I should have no hesitation in pronouncing it defective, and the conviction erroneous.
    But a general verdict of guilty will be upheld if there be one good count to which the evidence can properly apply. (4 Park. Grim PI., 26; 1 ibid, 246; Ibid, 202; 8 Wend., ■ 210; 3 Hill, 194; 1 John., 320.) It remains, therefore, to be seen whether the evidence will support the first count.
    In this count the prisoner is charged with having advised Elizabeth Dixon “to take certain medicines, drugs and substances, to wit: certain pills known as 1 Dr. James Clark’s Female Pills,’ which the said George Crichton then and there produced, for the purpose and with the intent of procuring the miscarriage,” &c. The words “ which the said George Crichton then and there produced,” may be disregarded or deemed expunged as surplusage. The production of the medicine by the prisoner constituted no part of the offense declared by the statute; Mere surplusage will not vitiate an indictment, nor need it be proved if stated. (Lohman v. The People, 1 Gom., 379.) The material charge then is, that he advised and procured Elizabeth Dixon to take certain medicine, drugs and substances, to wit: certain pills known as “Dr. James Clark’s Female Pills,” for the purpose and with the intent of procuring a miscarriage. Will the evidence sustain the verdict of guilty on this charge?

      The evidence of Elizabeth is, that the prisoner procured her a bottle of Dr. Clark’s female pills, and told her to take them and she would be all right, or it would make her all right. It was also proved that he bought, about the time mentioned by the witness, at Ralph’s store, a bottle of Sir James Clark’s female pills. Elizabeth also testified that he told her that he bought the medicine at Ralph’s store. In codnection with this, however, it should be stated that she testified that he procured for her other medicines besides Dr. Clark?s pills, and to this the prisoner’s statement may have had application.
    Had the indictment preferred a general charge, that the prisoner advised and procured Elizabeth Dixon to take certain medicines, pills and substances, for the purpose and with the intent, &c., without specifying what they were under a vidélicit, I think the offense would be proved by this evidence, for the crime would then have been established, and what the medicine or substance was called would have been immaterial. The proof would show that the prisoner advised the woman to take a medicine, drug or substance, with the unlawful intent denounced and made criminal by the statute, and the name of the substance would have been of no importance whatever.
    But can that which is averred in the indictment under a vidélicit descriptive of the offense charged, be held to be surplusage, and hence immaterial ? This question is answered in the negative by the decision in The People v. Jackson (3 Denio, 101). The court there held that when the indictment does not stop with the general charge, but proceeds under a vidélicit to explain or render more certain by description, the description becomes a material part of the charge. It is the office of a vidélicit to restrain or limit the generality of preceding words, and in some instances to explain them. If what precedes be matter of direct averment and material, then what is stated under the vidélicit will be deemed material and traversable, for all material facts, whether stated with or without a videUcit, are traversable. And if traversable, they must be proved, inasmuch as nothing is legally traversable by either party except what the adverse party may be required to prove. In this case what preceded the videlicit constituted the substantial offense, and was matter of direct averment, and what followed by way of limitation or explanation was consequently material and traversable. • The public prosecutor was therefore bound to prove the charge as laid, according to the additional explanation or description, which, under the averment, became material. But has he not done so? The general charge is clearly proved, as is also the description or explanatory part in its substance. It is proved that the prisoner purchased pills, known as “ Sir James Clark’s Female Pills,” and about that time gave pills to Miss Dixon, advising her to take them for the purpose of procuring a miscarriage, telling her they were Dr. Clark’s female pills. This evidence tends to establish the offense charged in its particulars of description, and is not open to the objection that it proves another or different offense. There is no substantial variance between the indictment and the proof given in support of it.
    No point is made by the counsel for the prisoner as to the admissibility or rejection of evidence.
    A new trial must be denied, the proceedings of the ■ court of sessions affirmed, and the case remitted, in order that judgment may be pronounced on the verdict.
    A writ of error was then brought, removing the case into the Court of Appeals.

      Myers & Magone, for plaintiffs in error.

      B. H. Vary (District Attorney), for the people.
   The opinion of the court was delivered by

Ingraham, J.

There was no error in excluding the inquiry put to Lytle as to his connection with Elizabeth Dixon. It was immaterial whether any other person had connection with her or not. The offense charged was the advising means to produce an abortion, and would have been the same whether the prisoner or Lytle was the father of the child. The main question in the case is whether the court erred in refusing to strike out the second count in the indictment, and if such refusal was erroneous, whether the verdict can be sustained notwithstanding such refusal. The objection to the second count is that there is no time or place averred at which the offense is charged to have been committed, so as to show that it was within the jurisdiction of the court. This count charges that at a certain time and place the said Elizabeth Dixon was pregnant, and that the defendant, with intent to cause and produce her miscarriage, did advise and procure her then and there to take, &c. The objection to this count is that the words “then and there” should have been inserted prior to the allegation of advice and procurement, and not as to the taking and use of the medicines. The ordinary interpretation of this count would be that the advice was given at the time when Elizabeth was averred to be there, and when it was averred that she was to take the medicine advised and procured to be taken. It was all in the same tense and related to the same moment of time. The charge was that she was then pregnant; that the prisoner advised and procured her then and there (that is, at the time before mentioned, viz: when she was there pregnant), to take the medicines. All the acts charged relate to the same time, and the application of the rule that certainty to a common intent is sufficient, would be enough to sustain this count. But conceding that the second count was defective, that would not be fatal if the first count was good. (People v. Willy, 3 Hill, 194; Kane v. The People, 8 Wend., 210; The People v. Gilkinson, 4 Parker, 26, 29.), The first count is conceded by the prisoner’s counsel to be good, but he contends that the evidence could not apply to it. The averment is that the prisoner advised Elizabeth Dixon to take certain medicines, drugs and substances, to wit: certain pills known as “Dr. James Clark’s Female Pills,” and the evidence was that he brought a bottle of Dr. Clark’s female pills and told her to take them, &c. There can be no doubt, if the nature of the medicine had not been stated under a videlicit, the- count would have been amply sufficient, and the evidence would have sustained it. It has been held that whatever is not necessary to constitute the offense may be treated as surplusage. This is particularly the case where the offense is statutory, and in such a case it is always ' sufficient to charge the offense in the words of the statute, although more particularity is required in bringing the offense within it; whereas, in this case more words are used than are necessary to make out the offense. I think the remaining may be rejected as surplusage. Various cases to this effect may be found in 2 Wharton Cr. Tr., 626. But I think the allegation was substantially proven if it was not to be regarded as surplusage. The evidence showed the prisoner to have done everything averred in this count, excepting that the pills recommended were Dr. Clark’s pills instead of Dr. James Clark’s pills, and there was also evidence to .show that the prisoner had purchased Sir James Clark’s pills at the place where he told Elizabeth Dixon he had purchased them. If it had been necessary to show that the pills he recommended were Dr. James Clark’s pills, the evidence was ample to submit to the jury the question whether it was this particular medicine the prisoner recommended, and upon this point their finding is against the prisoner. There •is no ground for interfering with the judgment of the general term.

Judgment affirmed, and proceedings remitted.