This information, is brought upon the 1st sec*57tion of the statute entitled “An Act to prevent and remove nuisances in highways, rivers and water-courses.” And it is enacted, “that if any person or persons shall lay, or cause to be laid, in any highway, stones, trees, &c.; or erect any buildings therein, by which the passage of travellers shall be obstructed, prevented or endangered, or such highway annoyed, or in any way encumbered; the same shall be deemed a common nuisance, &c.; and every person so offending shall forfeit the sum of four dollars.” Stat. 479. tit. 74. (ed. 1838.) It was admitted, on the trial, that the store or building charged in the information as being an encroachment and nuisance upon the highway, was erected by Enoch Burrows, Esq., more than thirty years ago. The defendant had become the purchaser of it, and its occupant, in 1834; and is now in possession, and had neglected to remove it, when notified, by a committee of the town of Stonington, in 1840. And the public prosecutor did not claim, that the defendant had done any other act to subject himself to the provisions and penalty of the statute.
No act is a violation of a penal statute, unless it falls within its spirit and the fair import of its language. The United States v. Sheldon, 2 Wheat. 119. Daggett v. The State, 4 Conn. R. 60, Leonard v. Bosworth, 4 Conn. R. 421.
The facts offered to be proved in this case, do not constitute the offence charged in the information: they do not bring the defendant either within the words or intention of the 1st section of the statute. It is the erection of a building within a highway, which is prohibited and punished by this section of the law, and not merely its continuance there, or the permitting it to remain by an innocent purchaser—a stranger to its original erection. It is admitted, that this store was erected, by Enoch Burrows, in 1804, or soon after: it could not, therefore, have been erected by this defendant, thirty years afterwards.
That the defendant may have been guilty of continuing a nuisance, is possible; but for that offence, if it be one, he is not prosecuted; and for that, this statute provides no punishment. If both the erection of the store and its continuance upon the highway, were offences, they were distinct, committed by different persons, and at different times. If this defendant can, under this information, be punished for the *58erection of the store, he will be punished for the act of Burrows, to which he was not accessory.
Whether at common law, the continuance of that which, when erected, was a nuisance, without any new act done, can be punished as a new nuisance, we need not now enquire; because this information does not embrace any such case, nor charge any such offence. The public, in such case, are not without remedy; because the occupant of the building may be compelled to remove it, under the 2d section of this statute.
And we think, too, that the voluntary act of erecting a nuisance involves a much higher degree of moral turpitude and criminality, than the facts offered to be proved in this case evince; and of course, that these do not fall within the spirit and intent of this enactment. It is true, that for most, if not all civil purposes and responsibilities, the continuance of a nuisance is equivalent to the creation of one; and if this be so criminaliter, as the prosecutor contends, we think the information ought to set forth the facts circumstantially; and that it is not enough merely to allege the erection of a nuisance, as if the defendant was its original cause.
This defendant was tried in the superior court, and upon a fair hearing, has been acquitted, by the jury there; and yet, the public prosecutor on behalf of the state demands a new trial! This is a bold experiment; and has never, to our knowledge, been made before in this state.
We need not go into an examination of the law of England, or of our sister states, in regard to the granting of new trials, upon conviction in criminal prosecutions, whether they be for treason, felony or misdemeanours. This is a case of acquittal; and it is conceded every where, where the principles of the common law of England are recognized and prevail, that in all cases of indictments or informations for matters criminal, in which the accused has been acquitted, and his acquittal has not been procured by his own fraud or evil practice, he shall not again be put in jeopardy, by a new trial granted upon the motion of the state or the public prosecutor. This is a case of such a character, being strictly criminal, both in form and purpose, 1 Chitt. Cr. Law, 657. Graham on New Trials, 505. The King v. Mawbey, 6 Term Rep. 625. The King v. Oxford, 13 East, 412. in notis. *59The King v. Reynall, 6 East, 315. The King v. Mann, 4 Mau. & Selw. 335. 3 Bla. Com. 387. Christian's notes. The People v. Comstock, 8 Wend. 549. The King v. Bear, 2 Salk. 646. The King v. Davis, 1 Show. 336. The King v. Bowden, 1 Levinz, 9. Hannibal v. Spaulding, 1 Root, 86.
In civil actions for the recovery of penalties, and in some cases where the form of proceeding is criminal, if the object is only to establish a civil right, as in cases of quo warranto &c. new trials may be granted, even after an acquittal. And in the case of Wilson v. Rastal, 4 Term Rep. 753., the court expressly alludes to the established distinction in this respect, between civil actions for the recovery of penalties, and public prosecutions for public offences. Calcraft v. Gibbs, 5 Term Rep. 19. The King v. Francis, 2 Term Rep. 484. Lord Selsea v. Powell, 6 Taun. 297. But in such cases, the better opinion seems to be, that new trials will only be granted for the misdirection of the judge in matter of law. Brooke q. t. v. Middleton, 1 Campb. 450. Graham on New Trials, 534. and the cases there cited.
Our statute authorizing writs of error and new trials in criminal cases, was not intended to invade the common law, by giving to the state the power of putting an accused person upon a second trial for the same offence, after his fair acquittal. It provides for the party aggrieved; which, in common acceptation, means individual parties, or the state in its corporate character, and not the public, or the people. It provides no mode of service of process, except as against the state. This statute may, to be sure, authorize new trials in all cases of civil actions between party and party, for the recovery of penalties for other legal causes beside the misdirection of the judge; but this we do not determine. But in all cases of conviction, in criminal prosecutions, the accused, by our law, is entitled to relief by new trial, in the same manner as in civil actions; and our courts do not, in such cases, as is sometimes done elsewhere, turn the convict round to the clemency of the pardoning power, where the penalty alone is remitted, while, though he may be innocent, the disgrace and degradation remain.
There seems to us, to be no healthy spot in all these proceedings, since they came from the hands of the justice; and as this defendant, as we suppose, has been twice acquitted, *60we cannot advise a new trial, at the instance of the state, and in this way, subject him to another trial. The motion is denied.
In this opinion the other Judges concurred.New trial not to be granted.