Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1889-04-05
Judge Tyler's Charge to the Jury
ON AN INDICTMENT FOR NUISANCE, TRIED At
THE MARCH TERM or THE wiNDHAM COUN-

| ON AN INDICTMENT FOR NUISANCE, TRIED At
THE MARCH TERM or THE wiNDHAM CoUN-
TY COURT.
Gentlemen Of the JltiV.
You have apparently given close atten-
tion to the evidence and the arguments in
this somewhat long trial, and | now ask
your continued attention to such nstruc-
tions as seem to me applicable to the case
before submitting it to you for your YER
dict.
This trial is had upon an indictment
found by the grand jury at the last Sep
tember term of this court against this re-
spondent for obstructing portion of pub
lie highway, commonly called Western av-
enue in the town of Brattleboro by erect
ing thereon two dwelling houses and there
by creating a nuisance. Nothing is to be
taken against the respondent from the fact
that an indictment has been found against
him, nor is it Of any Importance to inquire
who procured it, It is necessarily in the
name Of the state, being public prosecution,
although the people of Brattleboro are more
directly interested In the highway than the
public generally. Comment has been made
because the town Of Brattleboro EMPLOYS
counsel to prosecute. | can only say it is
proper it should do so by reason of its in
terest. To this indictment the respondent
pleads not guilty.
A public highway is right or franchise
belonging to the public-to all the people
who have occasion to use it. The public,
ordinarily, does not own the land itself the
soil, the Jee as 1t il called but it does pos
sess an unObstruoted right of iOdy, of pas
sage over a highway. The primary pur-
pose of highway is the free passage Of
the public over it, and it is not necessary
to show that the public has suffered any
other injury or inconvenience than that Of
being excluded from that portion of it so
obstructed. 1t is not necessary that the
Travelled part be obstructed, for the public
is entitled to the whole extent of the sur
vey Any act that obstructs the public,
without necessity anything that inter
feres with that free passage which the pub
lie is entitled to, Is nuisance,
In this case the burden of proof is on
the state to make out First, that this
public highway, about which there is no
controversy. The respondent admits that
highway runs along past these houses.
Second, that respondents houses or por
tiOn of them are within the limits of the
survey.
The rule in cirH causes is that the jury
should weigh the evidence carefully and
find for the party III whose favor it pIepOH-
derdtes although it il not free from doubt
but in criminal causes the rule is different.
mere prepOndeTance Of evidence is not
sufficient. The jury must he convinced
beyond any reasonable dOub that the re
spondent is guilty of the offence charged
against him in the Indictment The law
presumes that men are innocent of crimes
and misdemeanors, and casts upon the state
the burden Of proving them guilty, beyond
reasonable doubt, when they are put on
trial
Now what is a reasonable doubt 1t is
not doubt that rests only in the possibility
that the respondent did not commit the of
fence with which he is charged, for every
thing relating TO human affairs and depend
ent on human testimony is open to some
possible doubt Absolute certainty is not
often arrived at in trials for crimes and
misdemeanors, and 1t is not necessary that
it should be. 1t is such doubt as men may
reasonably entertain in regard to the graver
and more important affairs of life
Now, gentlemen, having heard and care
fully considered all the evidence in this
case, are your minds convinced beyond
reasonable doubt that the respondents
houses are partly within the limits of this
highway! If so, then your verdict should
be guilty If the state has failed thus to
convince you then your verdict should be
not guilty.
As have intimated in the course Of the
trial, it is not necessary tp find IA criminal
intent on the part of the respondent 1t is
| only necessary to prove that he has infring
ed upon the rights Of the public in the man
ner laid in the indictment. The primary
and main purpose of prosecution for
nuisance is to abate it, to remove the OBJ
struction, which renders the intent wholly
immaterial. Therefore, the issue is are
| these houses or either of them, wholly or
in part within the limits of the highway
| The state is bound to make out its case by
the rule above given.
You have had a view of the premises to
enable you the better TO appreciate the evi
dence The state claims that the road at
the point in controversy, under the survey
| of 1925 extended further south than it
now does and included part of the land oc-
cuped by these houses that in conse-
quence of the bank sliding away the road
has gradually been moved further to the
north. The respondent claims that there
has been no material widening of the road
to the north since the survey of 1928, at
which time it appears to have been changed
but how many feet it was widened does
not definitely appear. 1t does appear from
actual measurement that from the bay win
dow of Johnson's west house to the north
side Of the north sidewalk opposite, is 80
feet-two and half feet over three rods,
and that measuring in like manner from
the east house it is 81 feet so it becomes
important for you to determine from the
evidence how much the survey of the road
has been changed by the caving off to the
south and the widening to the north
l.f -,l Nl, tt,,,,
claims that the survey of 1928 carried the
southern boundary of the highway further
south than the north line of Johnson's
houses, and many witnesses have been upon
the stand and testified in relation to this
matter The testimony of the state S wit
nesses tends to show that the bank formerly
extended several feet further south than il
now does-some say ten or twelve feet-and
that the walk ON the south side of the road
was also as much further south that q
fence has sometimes, but not always, beer
maintained near the top of the bank, anC
has varied in its location to conform to tht
bank itself. On the other hand, the testi
mony of witnesses in behalf of the respond
ent tends to show that fence has beer
maintained for nearly fifty years substan
TALLY where the south side of the Sidewalk
now is that the walk beside it never eX
tended much, if any, further south, than i
, does at the present time.
You have heard all the evidence on thi
subject, and it has been fully discussed ol
both sides by able counsel, and it woul,
serve no good purpose for me to again cal
your attention to it in detail 1t is you
duty to consider ali the evidence on boil
sides carefully, and determine, if you can
whether or not the bank, the fence and tn
, walk were formerly further south than tn
north line of Johnson's houses, as this bear
ON the question where the southern limit o
/ the survey of the road was at this point,
1t appears by the records that this high
way was re-surveyed in the year 1928 an
again in 1928, and the state has undertake
=, to convince you by the testimony of its sur
, veyors that the latter survey, which super
sedes all former ones, can be and has bee
accurately run, and that by it johnson
houses are partly in the highway, On th
T other hand, respondents surveyors den
r that the houses are within the survey, an
n give their reasons therefor.
, Much time has been taken in the evidenc
: and argument with the various survey
r and the plans drawn from them, The te
8 timony of these scientific men is befor
5 you, and it is for you to decide which seen
l. to you the more likely to be correct in vie
T. of their respective knowledge, skill, exp
I rience, the means they adopted to ascertai
q the survey of 1928, by reference to the re-
ord, by objects mentioned therein, /
courses and distances, and by compariso
n with the survey of 1925.
. The variation that the needle has unde
a gone in the period of sixty years is ma
ter of interest and Importance in this tria
n The surveyors introduced by the state clal
N that an allowance of variation of four d
a grees and fifteen minutes is correct, al
le that they verified its accuracy by actu
5 tests upon the line. 1t appears that NJ
m Phelps made an allowance of four degre
a variation. l understood him to conce
that upon variation of four and a quart
IS degrees the line claimed by the state su