People v. Borda
Before: Belcher
Synopsis
Criminal Law—Pollution oí Water Supply—Penning or Corralling op Sheep—Construction of Code.—Under section 374 of the Penal Code, which makes it a misdemeanor to keep any sheep or other live, stock penned, corralled, or housed on, over, or on the borders of any stream, the waters of which are used for the supply of the inhabitants of any city or town, and which are thereby polluted, the offense is committed by causing a large band of sheep to be daily driven to the banks of the stream and herded together by the aid of men and dogs, in, along, and upon the stream, for a considerable part of the day, and causing the bed and banks of the stream to be polluted by the sheep.
Id.—Meaning of Statute.—The language of the statute “penned,” “corralled,” or “housed on, over, or on the borders of any such stream,” imports that the animals may be inclosed by means other than an ordinary pen or corral, as such structures are not usually built on, or over a stream; and such use of the words “pen” and “corral” is authorized.
Id.—Usage of Word “ Corral”—Testimony.—The word “corral ” comes from the Spanish language, and is to be construed according to its approved usage; and it is proper for a witness whose qualification is not questioned to testify that where a band of sheep are kept bunched together and watched by men and doge, it is understood among stock, men as “corralling.”
Id. —Evidence—Discoloration and Impurity op Water.—Evidence is competent to show that the natural color of the water was perfectly clear in seasons prior to the herding of the sheep, and that it was very impure and discolored by sheep manure after the herding of the sheep. Harmless Error—Order Striking Out Evidence.—Where an objection to evidence has been overruled, the ruling is rendered harmless by a subsequent order striking out the evidence.
Belcher, C. The information charges that the defendant “ on the twenty-seventh day of June, 1893, at the county of San Bernardino, state of California, did willfully and unlawfully keep a large number of sheep, to wit: about two thousand sheep, penned and corralled in, over, and on the banks of that certain stream of water known as the East Fork of the Mojave river, so that by reason of keeping said sheep so penned and corralled as aforesaid the waters of said stream then and there became polluted; and from which said stream water was then and there, ever since has been, and now is, drawn for the supply of the inhabitants of the town of Hesperia, said Hesperia being then and there a town in the state of California.”
The charge was made under section 374 of the Penal Code, as amended March 3, 1893, which makes it a misdemeanor to keep any sheep or other livestock penned, corralled, or housed on, over, or on the borders of any stream, the waters of which are thereby polluted, and are drawn for the supply of the inhabitants of any city or town in this state.
[638]The defendant was convicted, and has appealed from the judgment and an order denying his motion for a new trial.
It was proved that the town of Hesperia had a population of three or four hundred people, who were supplied with water taken from the East Fork of the Mojave river and conducted through an open ditch about four miles, and then through a fourteen-inch pipe about eight miles; and that the water in its normal condition was very clear and pure, but that in June, 1893, it was so fouled with sheep manure as to be badly discolored and made entirely unfit for use.
It was also proved that in May and June, 1893, the defendant had a band of two thousand or more sheep, which he daily drove to the banks of the said stream, a little above the head of the Hesperia ditch, and there by the aid of men and dogs herded them together in, along, and upon the stream for a considerable part of each day, and that the bed and banks of the stream were covered with manure dropped by the sheep.
J. F. Pike was called as a witness for the prosecution, and testified that he was on the East Fork of the Mojave river on the 14th of July, and saw a large band of sheep there which the defendant claimed. He was then asked: “ Did you, when you were there, notice any corrals or structures along the eastern fork of the Mojave river”?
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