President of the Baltimore v. State

Miller, J., delivered the opinion of the Court. In this case the appellant corporation was indicted for permitting its turnpike road to fall into such a ruinous and defective condition for want of due repair, in the places specified in the indictment, as to amount to a public nuisance. There was a demurrer to the indictment which was overruled. The case was then tided upon the plea of not guilty, and the jury rendered a verdict of guilty.

In the course of the trial, exceptions were taken by the traverser to certain rulings of the Court, and this appeal has been taken therefrom, under the Act of 1812, ch. 316 as modified by the Act of 1884, ch. 132. This law provides that no judgment shall be rendered against the accused, if found guilty, until this Court shall have determined upon' the exceptions. There has therefore been no final judgment in the case, and the questions arising upon the demurrer are not now before us for review. Kearney vs. State, 46 Md., 422 ; Forwood vs. State, 49 Md., 538 ; Johns vs. State, 55 Md., 350 .

We have sometimes, at the request of counsel on both sides, passed upon the demurrer under such an appeal, but here counsel for the State have declined to unite in such request, and have insisted that the exceptions alone shall now be considered and determined. We shall therefore follow, in this case, the strict line of duty prescribed by the statute, and our own previous decisions to which we have already referred. The exceptions are fifteen in number. The defect in the road, which, it is alleged, constituted the nuisance, and which the State sought to establish by its proof, is the same as that relied on in the civil suit we have just decided, of Crowther against the same corporation, and of course what has been said in that case must govern the determination of the same or similar questions arising in this. 1st.

In the first, third, fifth and sixth exceptions the same question is presented as that presented by the first ⁵⁸¹ exception in Crowther’s Odse and the rulings in these exceptions are affirmed for the reasons there stated. It may be added that it does not appear that the questions allowed to be put in some of these exceptions were ever answered or how they were answered, and to these the remarks made by this Court in Lawson vs. Price, 45 Md., 133 , are directly applicable. The Court in that case said: “ The question allowed to he put to the witness is excepted to, hut the answer which may have been wholly unimportant or immaterial, is not given. Before we can reverse the ruling excepted' to we must he able to see that the party really has ground for exception, and may have been injured by what was done.

For aught that appears, the answer of the witness may have been more favorable to the appellant than to the appellee.” 2nd. The rulings in the seventh, tenth, and twelfth exceptions are the same as those affirmed in the fourth and fifth exceptions in Growther’s Gase, and are therefore also affirmed for the same reasons. 3rd. We find no substantial error in the ruling in the second exception. The Court allowed a witness to prove the condition of the whole width of the road (fifty-seven feet) in a certain locality within the limits described in the indictment, hut what his testimony as to its condition was, whether favorable or not to the traverser, nowhere appears.

There can he no reversal on account of this ruling because there is nothing to show that the traverser was in any way prejudiced thereby. 4th. In the eighth exception the Court refused to allow the corporation to prove that it would be enormously expensive to remedy the alleged grievance of the difference in level between the artificial and side roads by grading down the former or filling up the latter. It is no answer to an indictment for a nuisance that the corporation, through whose neglect of duty it existed, is pecuniarily unable to abate it. Winship vs. Enfield, 42 N. H., 197; Erie ⁵⁸² City vs. Schwingle,