Upon the proofs I think the jury were well warranted in finding the defendants guilty; and I consider the cases of The People v. Sands, (1 John. 78,) and Myers v. Malcolm, (6 Mill, 292,) authorities in support of the proposition that the careless or negligent keeping of gunpowder in large quantities near dwelling-houses, or where the lives of persons are thereby endangered, is a nuisance at common law. In The People v. Sands, the motion was in arrest of judgment, for the reason that the indictment did not charge any carelessness or negligence in the defendant; but merely that he kept a large quantity of gunpowder in a house near dwelling-houses ; and while the court held that the indictment was insufficient, and for that cause arrested the judgment, all the judges discussed the question involved in the present *74case, and came to the conclusion that the negligent keeping of gunpowder would constitute a nuisance.
In this case, the careless and improper manner of building and continuing the powder-house and keeping the powder therein are fully charged, and the proofs are such that I do not see how the jury could find otherwise than they did.
On the trial several questions were propounded to witnesses by the prosecution, the answers to which were admitted, although objected to, on the part of the plaintiffs in error, to which rulings the plaintiffs excepted.
Edwin Jenney, a witness for the people, testified that he was in the infantry and artillery service [of the United States] for three years, and a portion of the time had charge of an ordnance bureau, &c., and he was asked “what is the drdinary mode of constructing powder magazines?” which was “objected to by the accused, as incompetent and irrelevant, and not the proper manner of proving the buidling in question as improperly constructed.” The objection was overruled, and the decision excepted to, and the witness answered, “ They are constructed of earth; a frame of heavy timber is first 'set in the ground, planked, no nails or iron used; the roof covered with earth three or four feet in thickness. The magazine proper is protected by an outside door, and several interior ones; no iron of any kind is used about their construction; and men are not permitted to enter them, except in their stocking feet.”
If the object of this testimony was not to show that it was the duty of the accused to construct their powder-house in the same or substantially the same manner, it was immaterial and should have been excluded, because it might mislead the jury. Aúd if it was intended to show' that it was the duty of the defendants to build theirs in the same way, it was incompetent; for to hold that all dealers in gunpowder, who have occasion to keep it in
*75[Onondaga General Term, June 26, 1866.quantities, are bound to construct their storehouses for that purpose in the same way that is deemed necessary in forts and arsenals, would virtually interdict the traffic in the article by private persons, who could not afford the expense necessary to comply with any such requirement. With the selection of a suitable location I think a much less expensive warehouse would be sufficient. The court below doubtless admitted the testimony because it was thought to be material, and that it would aid the jury in determining the question of negligence on the part of the defendants; and • it may have had that effect. At all events I cannot see that it did not effect the result.
It is unnecessary to examine the other questions raised, as I am of the opinion that the testimony so admitted was incompetent.
I am in favor of reversing the judgment, and for a new trial.
t
Bacon, J., concurred.
Mullin, J. dissented.
New trial granted.
Bacon, Foster and Mullin, Justices,]