My own opinion of common law crimes and punishments, was fully expressed, in State v. Danforth, 3 Conn. Rep. 112. which remains unaltered; and although I am unable to comprehend the ground on which that case was decided, I am bound by its authority, so long as it remains unimpeached, by a contrary decision. It is, therefore, my duty to say, that the superior court has jurisdiction of high crimes and misdemeanours at common law; and the only question for me now to decide, is, do the facts alleged in the information constitute such an offence ?
“ High crimes and misdemeanours,” says Russell, *' are such immoral and unlawful acts as are nearly allied and equal in guilt to felony, yet owing to some technical circumstance, do not fall within the definition of felony.” 1 Russell on Crimes, 61.-‘‘The idea of felony,” says Sir William Blackstone, “is so generally connected with that of capital punishment, that we find *418it hard to separate them ; and to this usage the interpretations of the law do now conform.”
By statute, (tit. 22. sect. 98.) the superior court has cognizance of all offences, whereof any part of the punishment is Death, confinement in newgate or incapacity to hold office,- : and also of high Crimes and misdemeanours. If the offence in question be cognizable by the superior court, it must be nearly allied and equal in guilt to the crimes so punishable, such as murder, arson, rape, burglary, robbery, forgery, perjury, and many other atrocious crimes and felonies not to be mentioned among Christians. To which of these horrid crimes are the acts in question nearly allied, or equal in guilt ? Surely, they are not, in the language of Lord Coke, animo felleo perpetrata. Co. Litt. 391. a. Is it possible, that a wise legislator, or a learned, humane and independent judge, would doom a fellow citizen to the gallows, or the cells of newgate, for erecting a pigpen, or planting a tobacco-patch, on the highway, without impeding the public travel? As well might Hercules be called upon, by the indolent wagoner, to give him a lift, as the superior court to abate nuisances and remove encroachments from the highways. " Nec deus intersit, nisi dignus vindice nodus.” Hor. de Art. Poet.
But I wish not to be understood as saying, that the facts alleged do not constitute an offence. They certainly are a nuisance, or an encroachment, punishable by a justice, and removable by the select-men, or any other person.
I therefore advise the superior court to render judgment for the defendant.
The other Judges were of the same opinion.Judgment to be rendered for the defendant.