Smith v. State

Decided December 15, 1872

<p>The sentence and judgment, required hy the statute, upon conviction for maintaining a nuisance, under the act of April 15, 1857, can not be dispensed with upon a showing that the nuisance does not exist at the time such judgment is about to be rendered. In such case, however, an order to remove or abate the nuisance will not be issued to tho sheriff ns a matter of course; and, on the hearing of a motion for such order, either party will be heard upon testimony, and if it then appear that such nuisance has ceased to exist, the order should not issue.</p>

Decided 1872-12-15

By the Court.

¶1We think there was no error in refusing to hear the evidence for the purpose for which it was offered, to wit, to prevent a judgment for the removal of the nuisance, by an order to be issued to the sheriff, and at tlie expense of the defendant, unless the nuisance should be abated before the order should issue to the sheriff*.

¶2It was the duty* of the court to render the judgment complained of upon the conviction of the defendant. If, after such judgment was rendered, a motion had been made for the issuing of an order to the sheriff, testimony of the nature offered should have been received by the court.

¶3After conviction and sentence, under this statute, an order to the sheriff'should not he issued as a matter of course, but only upon a showing that the nuisance continues to ' exist.

¶4 Motion overruled.