Territory v. Ashby

2 Mont. 89

• Court: Montana Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinions

Servís, J..

The defendant was indicted, at the October term of Lewis and Clarke county district court, A. D. 1872, charged with the commission and continuance of a nuisance.

The indictment charges: “ That, at the time of committing the nuisance hereinafter mentioned, there was and yet is a certain ancient common highway in the town of Helena, in the county of Lewis and Clarke, in the Territory of Montana, known as-alley, in block No. 28 of said Helena, leading from and through said block No. 28 of said Helena, into, through and over a certain other public highway, called Bodney street, for all of the good people of said Territory to go, return, pass and repass at pleasure. And that on the 21st day of June, A. D. 1872, one Sherley Ashby, late of said county and Territory, with force and arms, at a certain place in said town of Helena, contiguous to and on the west" side of said public highway, called Bodney street, and across said alley known as-alley, in sajd block No. 28 aforesaid, leading through said block No. 28 into said public highway, called Bodney street, said alley then and there being a public highway as aforesaid, unlawfully and injuriously did erect and cause to be erected a certain wooden fence of the length of 13 feet and of the height of 4 feef, upon and across said public highway known as - alley in block No. 28 aforesaid, and that the said Sherley Ashby the wooden fence erected and made as aforesaid, from the said 21st day of June, A. D. 1872, until tbe finding of this indictment, with force and arms át said place where said wooden fence was so erected, unlawfully and injuriously did continue to keep and maintain, and yet doth continue, by which the common highway last aforesaid was, during all of said time, obstructed, injured and stopped up so that the same became and was impassable, to the great damage and common nuisance of the people, contrary to the statute, and against the peace and dignity of the Territory.”

To this indictment, the defendant, without arrest or plea, appeared by counsel, and moved to quash the same, for the following reasons:

First. That said pretended highway is not a common, ancient. highway, nor is there in said Helena such ancient, common highway.

Second. Because said highway is not described with such exactness as to enable defendant to ascertain the particular alley for the obstruction of which he is indicted, nor would a conviction or acquittal constitute a bar to a second prosecution for obstructing this alley in said block 28.

Third. Because there was no statute in force June 21, 1872, demanding penalties for such obstruction of an alley or highway, which has not been repealed.

Fourth. Because two separate offenses are charged, to wit: Obstructing an alley, and continuing the same.

Fifth. Because said statutes, under which the indictment is found, did not take effect until August 1, 1872.

Sixth. Because offenses,committed before August 1, 1872, are punishable under our statute, then repealed as to all offenses thereafter committed, and because the offenses charged in said indictment are not punishable in the same penalty, and because two separate and distinct statutes cover the offense charged, one of which statutes only was in force at any time, covered by the allegations of the indictment.

Seventh. Because two distinct and independent offenses are charged, and with different penalties, so that, upon a verdict of guilty, the court could not fix the penalty which the law provides. Eighth. Because of the other defects appeariug from said indictment.

This motion, the court, on hearing, sustained, and, without further judgment or order, as shown by the record, the Territory appealed to this court. And we are, therefore, called upon to determine whether the court, in sustaining this motion, erred. To do this we must necessarily examine, not only the indictment, but the several grounds contained in the motion to quash the same.

As to the first grounds of the motion, we think they were not well taken. It could only be determined on trial- upon a plea of not guilty, or motion in arrest of judgment after trial and conviction.

The second ground of the motion goes to the sufficiency of the indictment.

It is a well-established rule of criminal law, based upon sound principles, that every indictment should contain a complete description of the offense charged; that it should set forth the facts constituting the crime, so that the accused may have notice of what he is.to meet, and so that the court, applying the facts to the law, may see whether a crime has «been committed. This is necessary, also, in order that the com-t may know, upon conviction, what crime has been committed. But the highest degree of certainty is not required; certainty to a common intent is sufficient in the statement of an offense; and no rule ought to prevail which would serve only to shield the guilty instead of protecting the innocent; unreasonable strictness ought not, and is not, under our Criminal Code, required; and where the indictment clearly charges a crime, and fairly advises the defendant what act of his is the subject of complaint, the principal object of pleading is attained.

It is insisted in argument, that this indictment is insufficient as to its. description of the highway, and the alley alleged to have been obstructed, and that no termini of the alley or highway is described, etc. Let us examine the averments of the indictment in this respect. And a true paraphrase thereof is: That, at and during the time alleged, there was an ancient highway in the town of Helena, known as alley, in block number 28 of said town, which led from thence to and over a highway called Rodney street. That the defendant erected a fence across said alley contiguous to and near the west end of said Rodney street, and kept and continued the same across said alley from the 2d day of June, A. D. 1872, and until the 2d day of August, A. D. 1872.

The statute relative to this offense provides: If any person shall obstruct or injure, or cause to be obstructed or injured, any public road or highway, or common street, or alley, of any town, city or village, etc., or shall continue such obstruction, so as to render the same inconvenient or dangerous to pass, etc., etc., he shall, upon conviction, be fined, etc., and the court may abate such nuisance. Cod. Stats. 303, § 147.

By this statute it is made an offense to obstruct an alley in a town. The indictment charges the defendant with obstructing an alley in the town of Helena, and that it is and was a public alley — a public highway. It is true, it does not give the width nor termini of the alley; neither do we think it necessary. The description given in the indictment is amply sufficient to so apprise an officer charged with the duty of abating such nuisance to act understandingly, as'well as to apprise the accused, without any unreasonable difficulty, of the place intended; and if there be any such difficulty, advantage thereof can be taken, under our practice, by demurrer. This doctrine, we think, is well sustained in Archbold’s Criminal Practice and Pleadings, and in Commonwealth v. Hall, 15 Mass. 240. We are, therefore, of the opinion that the indictment in this case is sufficiently definite in its description of the offense charged, and that a verdict of acquittal or conviction under it would be a bar to a future prosecution, especially so as, by the 224th section of our Criminal Code, a plea of former conviction or acquittal will be held good, not only for the offense charged, but for any offense necessarily vneluded in the indictment, of which the defendant might have been convicted.

The more difficult questions to be determined arise out of the remaining grounds of the motion to quash the indictment, to a correct determination of which we must examine the various statutes of this Territory, defining and punishing this offense. The statutes of 1865 and of 1872 upon this subject were exactly alike. Tbe latter arose from tbe codification of tbe laws of tbe Territory, and it is but reasonable to presume tbat tbis latter statute was not intended to form a part of tbe codified criminal laws. It was, to say tbe least, no amendment to, or modification of, tbe former law upon tbe same subject. But be tbis as it may, we find tbe law upon our statute books, and being called upon to adjudicate upon it, must do so as our best judgment shall dictate.

Tbe law of 1872, by its terms, took effect August 1, 1872, and it also provided as follows (§ 192): “ All acts and parts of acts conflicting berewitb, as to crimes committed after tbis act shall go into effect, are hereby repealed. All laws heretofore existing upon tbe subject of crimes and punishments shall remain in full force and effect as to all crimes committed before tbis act goes into effect.”

Tbat tbis law, no matter by what means it has crept into and upon our statute, is undoubtedly, at least so far as it conflicts with tbe law of 1865, a repeal of tbat law, as found in section 129 of tbe Bannack statute of 1865. We believe tbe doctrine to have been universally established, both in England and in tbe United States, tbat when a criminal statute is repealed, and there is no provision in tbe repealing statute saving offenses or pending prosecutions under it, no conviction, after such repeal, can be legally bad under such statute; and tbe statute repealed must be considered, except as to transactions passed and closed, as if it bad never existed. And tbis doctrine,' so long and universally established, should not be destroyed by indulging in conjectures as to tbe intent of tbe legislature.

Now let us see the law of 1872 repealed, what ? “ All acts a/nd parts of acts conflicting herewith.” Wherein, we would inquire, is section 129 of tbe law of ■ 1865 in conflict with section 147 of tbe law of 1872, and the answer is, nowhere; then is tbe old law repealed? Tbe fact tbat our legislature does exactly what a former legislature has done, does not thereby necessarily impair tbe validity of tbe same act of tbe former legislature, or repeal it, unless it clearly appears tbat such subsequent legislation was intended as a revision of and substitute for tbe former legislation.

But suppose such in fact was tbe intention of tbe legislature of 1872. How then stood the law in question as to the charge in the indictment? The old law was, without doubt, in force until August 1st, 1872. The new law was in force (if at all) from and after August 1st, 1872. The charge in the indictment covered this whole time. Then was there not an offense charged under one or the other or both of the acts ? It is quite clear that there was. But it is insisted that, although there were two statutes in force during the time charged in the indictment, that the court could not, upon conviction, pronounce judgment according to the right of the case. Why not ? It is quite clear, that the defendant could have been convicted if the proof would so justify, from June 2d, 1872, until August 2d, 1872, for that is expressly provided for in the law of 1872. And the averment in the indictment that the nuisance was continued beyond the time of the life of the statute, would not thereby invalidate the indictment. It might affect the extent of the proof. And on the other hand, suppose the old law to have been absolutely repealed without any saving clause as to acts committed or actions pending. Why could not the defendant be convicted or acquitted from the time the new law took effect until November 2d, 1872, when the indictment was found ? The averment in the indictment that the offense was committed before the law took effect, and so continued from that time forward, during which there was a law punishing the offense, does not invalidate the indictment nor defeat an investigation during the time the law in fact was in force.

The fact that the indictment avers, that on the 2d day of June, 1872, the defendant erected the fence (nuisance) and thereafter continued to mai/ntavn the same, is not under om statute such a statement of two separate offenses as cannot be joined in one count. This proposition is not only sustained upon principle but upon authority. People v. Frank, 28 Cal. 513.

We are, therefore, of the opinion that .the motion to quash the indictment was not well taken, and that the court erred in sustaining the same. The judgment of the court below is, therefore, reversed and the cause remanded for further proceeding.

Exceptions sustained.