Campbell v. State , 16 Ala. 144 ( 1849 )

COLLIER, C. J.

The indictment charges that the nub sanee for the erection of which the defendant was convicted is continuing, and the only question raised is, whether the judgment prescribing the manner of its abatement is legal. After the recovery of the fine assessed by. the verdict, the judgment proceeds thus, “ and it is further ordered by the court, that the nuisance be abated forthwith at the costs of the defendant, and the sheriff is charged with the execution of this order.” This is certainly a judicial sentence, and in effect, is precisely the same as if the sheriff had been commanded in totidem verbis to abate the nuisance, and the defendant been .charged with the cost of abatement.

All common nuisances are punishable by fine and imprisonment, and as its removal is usually the chief, end of the indictment where it is stated to be continuing, and does in fact exist at the time of the judgment, the defendant may be commanded by the judgment to remove it at his own costs. Only so much of the thing, as- causes the nuisance ought to be removed. In Rex v. Stead, 8 T. Rep. 142, Lord Kenyon said, “ when a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition; it was so stated in Rex v. Pappineau, et ad hime exist'd, and in such cases, the j udgment should be that the nuisance be abated. But in this case it does not appear in the indictment that the nuisance was then in existence, and it would be absurd to give judgment to abate a. supposed nuisance which does not exist If, however, the nuisance still continue, the defendant may be again indicted for continuing it.” See also Rex v. The Justices of Yorkshire, 7 T. Rep. 468; 1 Russ., on Crimes, 305-306. If the court are satisfied, that the nuisance for which the defendant is indicted is effectually abated, before judgment is prayed upon the indictment, it will not in its discretion give judgment to abate-it. 3 Chit. Crim. Law 3d Am. edit. 607 (a) note; 7 Bacon’s Abr. 234, (Bouv. edit.) In Barnet v. Ihrie, 1 Rawle Rep. 44, it was supposed that a distringas was the proper writ to compel the defendant himself to abate the nuisance. If the nuisance for which the party was convicted still continues, the continuance will form a distinct offence, for which he may be again indicted. The People v. Comstock, 8 Wend. Rep. 549; The King v. Reynells, 6 East. Rep. 315; 1 Chit. Criminal Law, 657, 3d Am. edit. If the citations we have noted, correctly indicate the form of the judgment, upon a verdict of guilty for a continuing public nuisance, there can. be- no question that so much of the judgment as orders the abatement of the nuisance- in the present case at the defendants costs, is irregular and unauthorised. Whether injury has or could result from.this departure from the law, we have no means of determinihg, and in a criminal prosecution, we incline to-think that it would not be proper to institute such an inquiry. In such cases we should suppose the accused has the right to insist upon a compliance with the law, and cannot be compelled to acquiesce in an illegal' judgment because it is not more prejudicial to him than it would have been- if it had been regular;.

There is- certainly much force in the arguments of the counsel for the plaintiff in error, that the sheriff’ cannot know what part of the erection complained of, is a nuisance, or whether so much- of it has not been removed by the defendant himself as is indictable. To- this we may add that the defendant has the right to- select the- mode of abatement and the persons by whom it shall be executed with a view to economy, and thus-save as far as may be, the costs incident to such- a service by an executive officer of the law.

We have no discretion which authorises us to sustain the-judgment of the Criminal Court. It is therefore reversed as respects the order to the sheriff to abate the nuisance, and will be here rendered commanding the defendant to abate the same, if it has not abeady been done.