
    The People of the State of New York, Resp’ts, v. Jacob J. Crounse, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    1. Highways—Evidence — Testimony op commissioner as to obstructions.
    Wher.e a party is by indictment charged with having wickedly, unlawfully and willfully interfered with and obstructed a public highway, the testimony of the commissioner of highways to the effect that the defendant acted under the advice and direction of such commissioner in placing the obstruction complained of is admissible as tending to repel any charge or inference of malice, which was an element of the offense charged, and to vindicate his conduct and to explain the motives by which he was actuated in what'he did.
    '3. Same—Criminal law—When party not liable por obstructing a HIGHWAY.
    If a party follows the direction of a commissioner of highways who is charged with the care of the highways, and, therefore, competent to direct in regard to them, he cannot be punished criminally for following such directions.
    -3. Same—Evidence—When objection must be taken.
    A party is not at liberty at a trial to remain quiet when evidence is being given, and allow the same to be received without objection, and after speculating in regard to its effect cause it to he stricken out. The motion under such circumstances comes too late.
    4. Same—Husband not liable por continuing nuisance on lands op WIFE.
    A husband, while acting as the agent of his wife, cannot be made liable and punished for continuing a nuisance upon lands owned by the wife.
    Appeal by the defendant from a judgment of the court ■of sessions of Albany county.
    
      Jacob Clute, for app’lt; Hugh Beilly, district attorney, for resp’ ts.
   Ingalls, J.

The defendant was, by indictment, charged with having on the 5th day June, 1885, wickedly, unlawfully, and willfully, interfered with and obstructed, a public-highway, in the town of Knox, in the county of Albany, and thereby causing the water to flow upon such highway to its injury, and to the prejudice of the rights of the public, who were entitled to use the same as a public highway. The prosecution gave evidence at the trial, to the effect that, in 1885, an embankment existed under the fence • adjacent-to such highway, and upon land occupied by the defendant, but which the evidence shows was owned by Mrs. Jane Crounse, who resided with her husband upon the same premises. Such embankment was removed by the defendant, who subsequently filled up the ground upon the premises occupied by him there, by creating what was claimed by the prosecution, to constitute an obstruction to the flow of the water ih its natural course. Such filling was accomplished by the deposit of stone, gravel, and other materials, a short distance from where the obstruction first mentioned was located. Considerable evidence was produced at the trial, in regard to such structures, and the extent, thereof, and the effect produced by them, in regard to the flow of the‘water upon the highway. It seems from the evidence, as we understand it, that the water which accumulated upon the land occupied by the defendant, was surface-water, which at certain seasons of the year, disappeared. _ The view which we take of this case does not render it necessary to examine the evidence, or to discuss the same to any considerable extent, for the reason that we have become convinced that legal errors were committed at the trial, which prejudiced the case of the défendant, to an extent which calls for a reversal of the judgment.

One material error consisted of the striking-out, upon the motion of the district attorney, of the evidence of Andrew J. Armstrong, the commissioner of highways, who was examined as a witness on the part of the defendant for the purpose of showing that whatever he did in-removing the embankment, and filling upon the land which he occupied, was done by the direction of such commissioner of highways of the town of Knox. The motion, and the decision thereon, appear in the following evidence of' the witness Armstrong.

Andrew J. Armstrong, sworn for the defendant. Examined by Mr. Olute: Q. Where do you live now? A. Town of Wright, Schoharie county.

Q. How long have you lived there ? A. I moved thereabout a week before the 1st of April of this year.

Q. You moved there then in March, 1887 ? A. Yes, sir.

Q. Where did you move from ? A. Knox.

Q. How long had you lived there ? A. I was born there,. and I had been out of the town, I guess, three years," and I was forty years old in March; about thirty-seven years.

Q. Were you ever commissioner of highways of that town ? A. I was in 1885.

Q. Were you acquainted with this road that passes between the Methodist Church and the school house, starting from the Schoharie road over to the Street ? A. I have always traveled" it more or less; not a great deal of late years.

Q. While you were commissioner of highways did you make an examination of that road ? A. I did,

Q. And of those sluices ? A. Yes, sir.

Q. And where the water was running ? A. I did.

Q. Did you see Mr. Crounse ? A. I did.

Q. And have.a talk with him about it ? A. Yes, sir.

Q. As commissioner did you take counsel as to what you should do to the road. A. Yes, sir.

Q. What instructions, if any, did you give Mr. Crounse as commissioner ? A. I said to Mr. Crounse that we would each pick a man that would take good counsel, he could and I would, and as they decided so it should go, and he did me to pick mine first and I did so, then he said “we won’t pick but one, we will leave it to him,” and we did as; I stated the case as near as I could and the counsel decided.

Q. After getting the decision of the counsel, then what did you say to Mr. Crounse ? A. I told Mr. Crounse he could open the ditch on the side of the road and let the water run.

Q. Did you say anything to him about filling up on the side on his land or fence? A. Yes, sir; I think so.

Q. Where the water had been running? A. Yes, sir.

Q. What did you state to him? A. I told him he could fill that up; I didn’t think there was any place for water to-run there.

Q. You have examined the land adjoining this road at- ' that place, have you? A. Yes, sir.

Q. The water that comes from the west and crosses over and comes into this place, where does it go to? A. There had been some time a ditch cut through when I was there; it run into a piece of low land, as I should call it, in the-second field, and there it remained until they dug a ditch and let it out. The district attorney moved to strike out the witness’ evidence as to what he directed defendant to> do on the ground as commissioner of highways he was not authorized to permit the obstruction of a water course or the flooding of a highway; that even if he did give such, instructions to Mr. Crounse, Mr. Crounse was not justified in obeying them.

Motion granted. Defendant excepts.

Q. What, if anything, did you say to Mr. Crounse about opening the ditches on the side of the road or taking away this embankment at both ends of that sluice? A. I told Mm that he could.

Q. Have you been over here in Crounse’s field to make ■an examination of this high ground, where the two portions come together? A. I haven’t been there since the fall of 1885.

We are satisfied that the evidence stricken out was competent and material to the defendant’s case. It at least tended to repel any charge or inference of malice, which was an element of the offense charged .against the defendant. The defendant was called upon to vindicate his conduct, and was 'entitled to explain the motives by which he was actuated in what he did. It is difficult to conceive more satisfactory evidence upon that subject than that testified to by Armstrong and stricken out by the court. ;Such evidence was to the effect that the defendant sought and acted under the advice and direction of the officer of the town who was charged with the care of the highways -of the town, and was, therefore, competent to direct in regard to them. McFadden v. Kingsbury, 11 Wend., 667.

And if such officer failed in judgment in regard to the direction which he gave to Crounse, certainly the latter should not be punished criminally for following it.

We do not undertake to decide precisely the force and ■effect which the jury should give to that evidence, but' merely that it was competent and material for them to consider in connection with the other facts of the case. Such evidence was received without objection by the district-■attorney, and we think it was error on the part of the court "to strike it out, after it had been so received. A party is mot at liberty at a trial to remain quiet when evidence is ■ being given, ánd allow the same to be received without ■objection, and after speculating in regard to its effect, cause it to be striken out, as the motion under such circumstances -comes too late. Quin v. Lloyd, 41 N. Y., 349.

Judge Woodworth, at page 355, says: A party against whom a witness is called and examined cannot lie by and ■speculate on the chances; first learn what the witness testifies to, and then when he finds the testimony unsatisfactory, object either to the competency of the witness, orto the form or substance of the testimony; the counsel may have been careless in permitting testimony to be given without objection, which would perhaps have been excluded if objected to; but this would not authorize the referee to -strike it out, after it has been received.”

It does not seem to be a satisfactory answer, that the disirict-attorney attempted in this manner to raise a legaj question in regard to the competency _ of the evidence, as; that he could have accomplished by a direct request to the court to charge the jury in regard to the legal effect of such-evidence, without violating a plain rule of evidence.

It will be perceived by reference to page 64 of the case, that the prosecution resorted to the same species of evidence, by the examination of Charles Armstrong as follows - Charles Armstrong, sworn on behalf of the people. Examined by District-Attorney Reilly:

Q. Are you path-master? A. I was in 1886.

Q. You know this stream? A. I do.

Q. And have known it for a number of years? A. Twenty years.

Q. What was its course, through Crounse’s land, as described? A. Yes, sir. Objected to.

Q. What was its course ? A. Came down and across the road and went on to the lands occupied by Mr. Crounse.

Q. When was that ? A. Eighteen hundred and eighty five.

Q. How ? A. Dam in the fence where it had crossed, through.

Q. What, if anything, did you do in reference to that dam as pathmaster? A. I wasn’t pathmaster. District attorney: I propose to show by this witness that by order of the commissioner he removed this dam.

Q. What did you do in reference to that obstruction f. A. Made a complaint to the commissioner of highways.

Q. Then, what was done ? A. He ordered me to remove it.

Q. Did you remove it? A. I did by help of district.

Q. What do you mean by that ? A. These that are assessed on the road.” It would seem that the defendant was entitled to the benefit of a principle thus established upon the sai&e triafLat the irfstance of the prosecution. In this case it appears that the farm upon which the obstructions are claimed to have been placed and continued by the defendant, was owned by Mrs. Crounse the wife of the defendant, and that she resided upon the premises at the time. Under such circumstances, it has been decided by this court that the husband while acting as the agent of the wife, cannot be made liable, and punished, for continuing a nuisance upon such lands. The People v. Livingston, 27 Hun, 105. The indictment herein charges the defendant with continuing such alleged nuisance. And therefore this case is brought clearly within the doctrine of the case cited. For the reasons assigned we conclude that the conviction should be reversed, and a new trial granted.

Landon, J.

Concurring with my brother Ingalls, I add, that the offense of committing a nuisance upon a public highway consists, among other things, in unlawfully doing -an act, which unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, the highway. Penal Code, § 385.

The evidence which the court struck out on motion of the prosecution, tended to show that the act of the defendant in 1885, in diverting the stream from its natural course through the lot of defendant’s wife, to a course along the highway, was done by defendant under the authority of the commissioners of highways. Assuming the truth of what was thus attempted to be shown to be true, the act of defendant was, in effect, the act of the commissioner.

Commissioners of highways have the care and superintendence of the highways and bridges, in their respective towns, and it is their duty to give directions respecting the repairing of the roads and bridges. 1 Eev. Stat., 511, § 1. It does not appear that there was more than one commissioner in this town. I think the commissioner had the power to direct, respecting the proper treatment of this water course, and that if in exercising his authority, he made a mistake, it was, in the absence of evidence to the ■contrary, simply a mistake in judgment, which in no degree, injured the power and authority which he exercised. The defendant, if .acting under such authority, did not "therefore act unlawfully, and hence his action would not come within the terms of the Penal Code above referred to.

If defendant after the above authority was revoked, repeated the act in 1886, he was not indicted for it.-

Learned, P. J., concurs.  