The ground of objection to the testimony in question, in the court below, is so entirely untenable, that the counsel for the defendant have, very properly, abandoned it. But they claim now, that the testimony was inadmissible for other reasons than those assigned in the bill of exceptions. They claim, that the testimony was irrelevant, as not tending to prove the defendant guilty of the charge alleged: that it only conduced to prove, that the building occupied by him, or some of its appurtenances, was in the highway, but not that the defendant placed it there; and although other evidence might have been produced, which would have made it relevant, yet it was incumbent on the plaintiff to shew, that such connecting evidence was exhibited. The plaintiff had to establish two propositions; that the nuisance existed, and that it existed by the act of the defendant. That this testimony went to prove the first of these propositions, there can be no doubt. That the shop, piazza and railing were in the highway, and obstructed the public travel, were facts alleged in the declaration, and unless established by proof, the plaintiff could not recover. It would, then, seem to follow, of course, that the proof of those facts might be admitted.
It is said, however, that this proof does not establish the guilt of the defendant. But it is part of the chain of testimony conducing to prove his guilt; for unless the existence of the nuisance was proved, it would be idle to prove, that the defendant erected it. Both these facts were alleged, and both must be *527proved, or the defendant could not be convicted. And if the plaintiff had offered to prove, that the defendant erected the building, the objection might as well have been made, that he had not proved that it was a nuisance. And the same course of reasoning would shew, that where a person was indicted for murder, the prosecutor could not prove the death, because he had not proved that the accused caused it; or on the other hand, that he could not prove the blow by the accused, until he had proved the death. Both facts must be proved; and the court are not to direct as to the priority of proof, or to rule out part of the testimony, which is relevant, because the prosecutor may not have sufficient proof to convict.
It is, however, further said, that this evidence was not of itself sufficient; and the court will not presume, that there was other evidence to make it so. A writ of error is not, and cannot be brought, because the evidence is not sufficient. It is to test the character, not the weight, of the evidence. Of course, the only enquiry is, whether the evidence wars of that character, which is admissible; and this, I think, is admitted by the argument of the defendant; because it is admitted, that coupled with other evidence, it would have been proper. Unless, therefore, the court are to presume, that the plaintiff had no such evidence, this was clearly admissible. The strength of the argument on the part of the defendant, rests on this, that it was the duty of the plaintiff to shew that he had the other testimony before this was admissible. On the contrary, the rule is, that where the evidence offered by the plaintiff conduces directly to prove an allegation in the declaration, the proof is admissible of course, unless the defendant shews other facts to found his objection on. To present the question, therefore, which the defendant wishes to make to this testimony, it ought to appear, that there was no other testimony on the part of the plaintiff. In the absence of proof as to that fact, the court, for the purpose of ruling out testimony pertinent to the issue, are not to presume it. And if that fact had been shewn, it would have been difficult to say, that the testimony offered was irrelevant, although there can be no doubt it would have been insufficient; but not having been shewn, the testimony was unexceptionable.
The case of Scovell v. Kingsley, 7 Conn. Rep. 284. does not impugn these principles. There, the witness to prove the words in an action of slander, swore, that he could not tell *528whether they were spoken before or after the commencement of the suit. The court held, that the testimony was not admissible; for as the time was material, and the witness could not ascertain it, it remained uncertain, whether the testimony was relevant or not. But here, the evidence directly proved one part of the facts alleged, that the building was in the street. Had nothing more appeared, it was, in my opinion, admissible; but taken in connexion with another fact, that seems to have been conceded, that the defendant was daily occupying this building, it was proper evidence, certainly, to shew, that he had continued the nuisance, and might have been proper evidence to submit to a jury, that he had originally placed it there.
There is, then, no error in the judgment complained of.
The other Judges were of the same opinion, except Peters, J., who was absent.Judgment affirmed.