State v. Beal , 94 Me. 520 ( 1901 )

Savage, J.

Indictment for nuisance, wherein the defendant is charged with having unlawfully and injm-iously erected, continued and maintained, within and upon the easterly side of Exchange Street in Bangor “a certain piazza sixty-three feet long, and six and sixty-five hundredths feet wide with a platform three and one-half feet high, and with a roof over the same supported by pillars, and steps leading from the sidewalk upon said street to the platform of said piazza on the north and south ends thereof, and steps leading from said platform on the westerly side thereof, said piazza being attached to and built upon the westerly side of a certain hotel located upon the easterly side of said street known as the “ Penobscot Exchange,” to the great damage and common nuisance of all the citizens of the state.

The erection and maintenance of such a structure as is described in the indictment is not denied by the defendant. But he claims, and at the trial offered evidence tending to show, that a portion of the land covered by the piazza is not now within the limits of Exchange Street; that for more than forty years prior to the building of any piazza three flights of stone steps led up from the street into the hotel; and two roll-ways led down from the street into the basement of the hotel, that though these steps and roll-ways, or some portions of them, were originally within the street limits, yet by reason of their having existed there for more than forty years, the line of the stone steps and roll-ways had become, under the provisions of R. S., chapter 18, § 95, the true bounds of Exchange Street, so far as the territory covered by the steps and roll-ways was concerned. The defendant’s evidence further tended to show that portions of the piazza described in the indictment were erected within the limits of the territory covered by the stone steps and roll-ways, while defendant admitted that the remainder of the piazza was within the limits of Exchange Street, and his learned counsel, in argument, very frankly and properly concede that the portion of the piazza admittedly within the limits of Exchange Street is legally a nuisance.

In bi’ief, then, the position of the defendant as to the facts is, that the piazza complained of is built in part over land which had formerly been occupied for more than forty years by the stone steps and the roll-ways; and that substantially all of the remainder is over land between the flights of steps and between the steps and the roll-ways, but within the limits of the street; or briefer still, that part of the piazza as described is without the street limits, and part within. And from this arises the only defense offered. The indictment charges the whole piazza, described by metes and bounds, to be a nuisance. The defendant says truly that so much of it as lies outside of the street limits is not a nuisance, and hence he argues that if the proof be that only a part of the piazza is a nuisance, then there is a fatal variance between the proof and the allegation, that the state must prove all the piazza described to be a nuisance, or the indictment cannot be maintained. For this purpose he asked to have his evidence tending to prove his claims, as we have defined them, submitted to the jury, and presented several requests for instructions, all in effect bearing upon the question of variance. The presiding justice declined to give the requested instructions, but did instruct the jury, among other things, that if they were satisfied that the bounds of Exchange street could be made certain by records, and that a portion of the piazza was erected by Mr. Beal within the limits of Exchange street, then all the evidence introduced by the defense in this case, admitting it to be true, would constitute no defense to this indictment. Exceptions were taken to this instruction and to the refusals to instruct.

All the evidence introduced in the case tended to show only that some portions of the piazza were outside the street limits. This was the defense. The instructions, therefore, were to the effect that, if part of the piazza was within the street, the fact that other parts were not, would constitute no defense. And so of the refusals to instruct. A single question is presented by the exceptions, — that of the alleged variance. Assuming the facts to be as claimed by the defendant, do they show a defense to this indictment? If they do, the exceptions must be sustained; if not, the instructions were correct, ánd the defendant has not been aggrieved.

The question may be viewed in a two-fold aspect. In the first place, the building is described with great particularity. Its length and width and other particulars are alleged with exactness. And the defendant, assuming, as we now do, that the building as described is not all within the street, argues that it is necessary that the whole description should be proven exactly as it is set forth, that no part of the description can be rejected as surplusage, and that it is impossible to strike out the whole descriptive averment without taking from the indictment the part essential to the allegation of the offense intended to be charged. It is undoubtedly true, that when a person or thing necessary to be mentioned in an indictment is described with even unnecessary particularity, all the circumstances of the description must be proved; for they are all made essential to the identity, 1 Greenleaf on Evidence, § 65; and a variance in proof of particulars is fatal, for proof of identity may depend upon preciseness of description. State v. Noble, 15 Maine, 476. But in this case no complaint is made either in exceptions or argument that a piazza with the particulars described was not proved with sufficient particularity; but the complaint is that all of the piazza so described and proved was not within the street. And this raises another, and, we think, a different question, and that is, does the failure to prove the allegation of an offense to the extent charged result in a fatal variance between allegation and proof. We think not necessarily. It is laid down by Mr. Wharton in his work on Criminal Evidence, § 145, that failure to prove allegations of number, quantity and magnitude in their entirety is not a fatal variance, where the proof pro tanto supports the charge. And we think this case falls within the principle of that rule. The piazza in this case was charged to be wholly a nuisance, to the limits of the description, and the state sought to prove that fact. If the state failed to prove it to, the full extent, it is not the less true, as admitted in argument, that the piazza in parts was a nuisance. If one were charged with creating a nuisance by placing a log twenty feet long in the street, would it be reasonable to hold that the prosecution must -fail if it should appear that six inches of one end of it extended beyond the street line? We think it would not. And what would be true of a log is true of a piazza. The law requires no such nicety even in criminal pleading. By so holding, no right of the defendant is jeopardized. His defense is not thereby made more difficult or uncertain. . .

The question here .relates not to the identity of the offending thing, but only to what extent the thing offended. The defendant places great reliance upon Commonwealth v. Wellington, 7 Allen, 299, where the defendant was indicted for desecrating a public burying ground, described by metes and bounds, and the question arose whether the whole land described had ever, been used, occupied or appropriated as a burying ground. The court held that failure to prove the entire land to be a burying ground would give rise to a fatal variance, and placed their decision upon the rule,' which we have already stated, requiring exact • proof in matter of description. If there be no distinction between that case and this, we can only say that we are not convinced by the reasoning of that court. The rule’ as we have already stated, touches the' identity of the thing alleged to be offending, and upon the branch of this case, which we are now considering, that question does not arise. .

The defendant also' urges upon us the consideration that the statutes, under which this prosecution has been begun, authorize the court, besides imposing a fine, to award an abatement or removal of the nuisance, R. S., c. 17, § 11; and that by the warrant which the statute prescribes, R. S., c. 17, § 13, the sheriff is commanded to forthwith cause the nuisancé as particularly described in the indictment, and of which the defendant was adjudged guilty, to be abated. The argument is, that the warrant must follow the description in the indictment, and that consequently, in case of a general verdict of guilty, a building, all of which is alleged to be a nuisance, though only a part of it may be proved to be so, may, and must, if warrant issues, be ordered to be abated, the lawful portion of it as well as the unlawful.

If the court called upon to render judgment were required to order an abatement, this position of the defendant would be one of great weight and perhaps decisive, for it cannot be that a prosecution for a nuisance can be sustained if it must result that a building must all be abated, where only a part of it is proven to be a nuisance. We think that the answer to- this proposition is, that the court is not required to order an abatement, if for any reason it cannot properly or lawfully be carried into effect. Whether there shall be an abatement or not rests in the legal discretion of the court, and we cannot presume that such discretion will ever be violated. The judge, to whom application is made for judgment of abatement, must hear and decide this question like all others. If it appears that a building described as wholly a nuisance is not all of it such, it will be his duty to refuse to order its abatement; and he may refuse for other and sufficient reasons. The matter of abatement, and the hearing and decision thereon, are entirely distinct from the trial of the main issue of guilt before the jury; and the decision is only to be made when the question arises.

Moreover it is proper that the county attorney should enter a nolle prosequi as to so much of the piazza as is not within the limits of the street. By adopting such a course, a record of a conviction may itself be made the correct basis for an order of abatement, if such an order is in other respects deemed proper and advisable by the justice to whom application is made.

The defendant argues that the presiding justice exceeded his authority in directing a verdict for the state, but this point was not saved by the exceptions; and if it had been, it would not be tenable, for the justice did not withhold from the jury the consideration and decision of any facts which.were material and pertinent to the issue.

We think the defendant’s exceptions should be overruled.

Exceptions overruled.

Judgment for the state.