was then being constructed by them. The, to cross-examine the city engineer with reflength of the proposed street was about 10 erence to his survey and the plan; but the rods, and crossed land belonging to the es- examiner sought to go further, and inquire of tate of George Guernsey and land of Martin him concerning matters not appearing upon Shields and wife, upon which H. C. Shurtleff the plan, especially with reference to the held a mortgage. The city council refused feasibility of other routes to reach the petito establish the highway, and this petition tioners' house. This the commissioners dewas brought to the county court. Commissioners were appointed, and after a full hearing and examination of the premises they found and reported that the public good and the convenience of individuals required that the proposed highway be laid out substantially as prayed for in the petition; that they had caused the highway to be surveyed, giving a detailed description of their survey; that they found, and so recommended to the court, that the roadway should be graded in a certain manner set forth in the report; that in so doing no bank wall should be constructed on the northerly side of the highway; that a plank walk should be constructed of a given width; that the highway be graded and ready for public travel within one year from the acceptance of the report; and that it be completely graded and filled for 20 feet in width, and suitably graveled or covered with cinders, on or before three years from the date of the order of the court establishing the highway. nied, ruling that it was outside the scope of The pe For convenience we will speak of the excepting parties as the petitionees. They brief certain exceptions to evidence received by the commissioners, exceptions to the exclusion of evidence at the rehearing, exceptions to the failure of the commissioners to comply with certain requests, and exceptions to the action of the court in overruling their motions and consideration of these questions to notice at the outset the peculiar features of a proceeding of this character, and the limitations upon the review of questions arising therein in this court. The parties interested in the Shields land filed exceptions to the report. The case coming on for hearing, the court ordered the report recommitted on the question of dam-accepting the report. It will facilitate the ages "and to give the landowners and city of Montpelier an opportunity to appear before commissioners in reference to land damages and survey made, so they may cross examine the surveyor and his plan." The recommittal on the question of damages was ordered to correct an irregularity in the proceedings. The parties had been fully heard on the questions, but before the decision and survey contemplated in G. L. 4423, and no further evidence was offered relating to damages at the rehearing. With reference to the survey and plan, when the commissioners had reached their decision after the original hearing, they employed the city engineer to make a survey and plan of the highway. This plan was attached and referred to in their report. It was objected that the survey was made "and the plan received in evidence" when neither the landowners nor their counsel were present, and outside any hearing in the case. It was to meet this objection, though evidently frivolous, that the recommittal with, reference to the survey and plan was made. The commissioners were well within their rights respecting the survey, and the plan was not "received in evidence." It was used merely as a matter of convenience in making their report. At the rehearing, full opportunity was The statute provides in substance that, on the neglect or refusal of the selectmen of a town (or the corresponding officers of a city) to lay out a requested highway, application can be made to the county court for that purpose. On such application, unless cause is shown to the contrary, the court is required to appoint commissioners to examine the premises and inquire into the convenience and necessity of the highway. If the commissioners decide that such highway ought to be laid out, it is made their duty to cause the same to be surveyed and to proceed to determine the question of damages. When the commissioners have completed their inquiries, they are required to make report to the court, stating their doings and decision, with their survey and appraisal of damages, if any. The town (or city) or any person interested can appear and resist the acceptance of the report by showing any facts relevant to the question. The court is empowered, for sufficient reasons, to reject the report, or to accept it in whole or in part, and, if accepted, to make an order establishing the highway (108 A.) and cost. G. L. 4419-4429. Such, in substance, has been the procedure since the earliest time, except for about three years be tween 1828 and 1831, when these matters were committed to a board of county road commissioners. [1] The provision for review on exceptions was enacted in 1872 by an act entitled "An act allowing questions of law arising upon the trial of road cases to pass to the Supreme Court for final decision." It was therein provided that no judgment of the county court in such matters should be reversed, unless the Supreme Court would have granted a writ of certiorari for the same cause. No 38, Acts of 1872. The scope of the statute has since been enlarged, but the limitation remains unchanged. G. L. 2257. Before the enactment of this statute, questions of law arising in such cases as the one at bar were usually brought to the attention of the Supreme Court by petition for a writ of certiorari. Construing these statutes, this court has held: That the report of the commissioners establishing a highway is not binding upon the court, and is only prima facie evidence of a legal necessity for its establishment, and that on objection to the report the court will inquire into and determine for itself, upon proper evidence taken and produced before it, whether the commissioners have arrived at a just and proper conclusion. Gray v. Middletown, 56 Vt. 53. That the propriety and ne cessity of establishing a highway in a particular place is one of fact, which in the last resort is to be determined exclusively by the county court. Gallup v. Woodstock, 29 Vt. 347. That on exceptions in this class of cases the judgment of the county court is not to be reversed, unless it is made to appear that substantial injustice has been done to the excepting party. Hancock v. Worcester, 62 Vt. 106, 18 Atl. 1041; Gray v. Middletown, supra. Varying expressions, but all to the same effect, are to be found in other cases dealing with the statute limiting review: Such a writ (certiorari) is uniformly denied, unless the error complained of is one affecting the substantial justice of the case. Orcutt v. Hartland, 52 Vt. 612. It is never awarded, unlesss injustice has been done to the petitioner (French v. Barre, 58 Vt. 567, 5 Atl. 568), or when no substantial right of the petitioner was invaded by the judgment of the county court (Hooker v. Montpelier & W. R. R. Co., 62 Vt. 47, 19 Atl. 775). The writ is not demandable as a matter of strict legal right, but it rests in the discretion of the court to grant or refuse it. He who asks for it must show that substantial injustice has been done, that will be remedied by granting the writ. Failing this, the writ is always denied. Hancock v. Worcester, supra. See, also, Stevens v. Hill, 74 Vt. 164, 52 Atl. 437. [2, 3] When challenged by the test which the statute requires, few of the petitionee's exceptions merit any special notice. Against the objection that it was the question which the commissioners were to decide, one witness was permitted to testify that the establishing of the highway would be for the public good and the convenience of individuals. It was error to put in evidence the witness' opinion of the necessity for the highway. It violated the rule of general application that a witness must state facts, and not opinion, and did not come within any of the well-recognized exceptions to this rule. Resort to opinion evidence from a nonexpert witness is only proper upon the ground of necessity. Thus, when the facts and circumstances are incapable of being detailed and described, so as to enable any one but the observer himself to form an intelligent conclusion from them, the witness is allowed to add his opinion. Cavendish v. Troy, 41 Vt. 99, 107; Baker & Sons v. Sherman, 71 Vt. 439, 447, 46 Atl. 57; Fadden v. McKinney, 87 Vt. 316, 323, 89 Atl. 351. The witness could, and doubtless did, testify to facts bearing upon the question; but the nature of the facts would be such that the commissioners could as well form an opinion upon them as the witness himself. The opinion of a witness in such a case as this on the question of necessity is usually, if not always, held to be inadmissible. 3 Wig. on Ev. § 1960; Detroit v. Brennan, 93 Mich. 338, 53 N. W. 525; Grand Rapids v. Bennett, 106 Mich. 528, 64 N. W. 585; Merritt v. Seaman, 6 N. Y. 175; Burwell v. Snead, 104 N. C. 120, 10 S. E. 152; Johnson v. Anderson, 143 Ind. 493, 42 N. E. 815. [4] But it does not follow that it was reversible error for the court to decline to reject the report because of the admission of this evidence. It is not made to appear that it resulted in any substantial injustice to the petitionees, and we may infer in support of the ruling that the court found the question of public good and the convenience of individuals so well established by other evidence brought to its attention that it was justified in regarding the error as harmless. [5, 6] It is urged that the commissioners exceeded their jurisdiction in directing that a plank walk should be constructed on one side of the proposed highway, in prescribing the grade of the highway, in forbidding the construction of a bank wall on one side of the highway, and in directing as to surfacing material. But such was not the effect of their report. They made recommendations respecting those matters which the court could reject, or accept, if it saw fit, providing, of course, they were matters within its jurisdiction. See Walbridge v. Cabot, 67 Vt. 114, 30 Atl. 805. But it is also urged that the court overstepped its powers when it ordered the highway established "according to the provisions of the report." The exception raising this question must be sustained. The 130, 132 (7)-DISTINCT OFFENSES MAY BE JOINED IN COMPLAINT, AND PROSECUTOR MUST ELECT. It is proper to set out two separate and distinct offenses in a complaint, provided they are of the same nature and are set forth in different counts, and the prosecutor may be required to make his election. DUE PROCESS. county court has no authority or jurisdiction | 4. INDICTMENT AND INFORMATION Orders of the county court are vacated, and the causé remanded. Let the city recover its costs in this court. (118 Me. 431) STATE v. DERRY. (Supreme Judicial Court of Maine. Jan. 14, 1920.) 1. CRIMINAL LAW 819-HIGHWAYS 186 -CORRECTION OF PROPER INSTRUCTIONS ON RECKLESS DRIVING OF AUTOMOBILE AND IN TOXICATION. 5. CONSTITUTIONAL LAW 257-DENIAL OF 6. CRIMINAL LAW 970(6)-INDICTMENT AND The joinder of the offenses of operating a motor vehicle recklessly and of operating a motor vehicle while under the influence of intoxicating liquor in one count of a complaint violates no fundamental right, and defendant, by failing to seasonably object, waives his privilege to require an election, and is not permitted to revive it after verdict by motion in arrest of judgment; the offenses not requiring different penalties. Exceptions from Superior Court, Cumberland County, at Law. Harry Derry was convicted of violation of Rev. St. c. 26, § 38, relating to operation of motor vehicles upon any highway recklessly or while under the influence of intoxicating liquors, and he brings exceptions. Exceptions overruled, and judgment for the state. Argued before CORNISH, C. J., and HanSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ. Carroll L. Beedy and Clement F. Robinson, both of Portland, for the State. Wm. C. Eaton and George S. Murphy, both of Portland, for respondent. In a prosecution for violation of Rev. St. c. 26, § 38, relating to driving a motor vehicle upon any way recklessly or while under the influence of intoxicating liquors, where the court instructed as to recklessness and intoxication, it was proper to recall the jury, and withdraw the question of intoxication by instruction, since if the defendant operated his motor vehicle recklessly in a public way so as to endanger the lives or safety of the public, he is liable without regard to his condition of sobriety or ebriety. 2. CRIMINAL LAW 818-COURT MAY CORRECT INSTRUCTIONS BEFORE OR AFTER RETIRE-section 38, c. 26, R. S. MENT OF JURY. The right of the presiding justice to correct his instructions, either before or by recalling the jury after their retirement, in a criminal case, directing attention specifically to any part of the original charge withdrawn or qualified, is beyond dispute. 3. CRIMINAL LAW 823 (7)-ERRONEOUS IN- Where the court instructed the jury on reckless driving of a motor vehicle and upon defendant's intoxication, and recalled them after retirement and withdrew from their consideration the matter of intoxication, if there was any error in the first instruction, it was not of such character as to be beyond cure by the latter instruction. DEASY, J. At the January, 1919, term of the superior court for Cumberland county, Harry Derry was convicted of a violation of The complaint before the municipal court brought to the superior court by appeal charged that he "did operate and control a certain automobile on the public highway in a reckless manner, while being then and there under the influence of intoxicating liquor, so that the lives of the public were in danger." The statute under which the complaint was drawn reads: "Whoever operates a motor vehicle upon any way, recklessly or while under the influence of intoxicating liquor, so that the lives or safety of the public are in danger, * * * shall be punished," etc. R. S. c. 26, § 38. The presiding justice instructed the jury in substance that, if they found that the re (108 A.) spondent, either recklessly or while intoxicated, drove a car on a public way so as to endanger the lives of the public, a verdict should be rendered against him. [1] After the jury had retired, they were, against the respondent's objection, recalled by the presiding justice, who then withdrew from the jury the question of the respondent's intoxication, and said: "My instructions will accordingly be modified so that it will not be necessary for you to consider and determine the fact as to whether or not the respondent was intoxicated. "You will confine yourselves and within the instructions already given you, to the question whether or not he operated a motor vehicle on that day in a reckless manner so as to endanger the lives or safety of the public, and let your verdict depend upon the finding upon that one question." After the verdict, and before sentence, the respondent filed a motion in arrest of judgment, on the ground that the complaint "is bad for duplicity in the following particulars, to wit, that it attempts to set out two separate and distinct offenses." The respondent seasonably claimed and presents four exceptions: (1) To the part of the original charge above quoted; (2) to the recall of the jury for corrected instructions; (3) to the instructions given after the recall of the jury; and (4) to the overruling of the motion in arrest of judgment. "There may be an error of such a character that nothing done by the judge can correct the harmful effect of it." If, however, any error was made in the charge in the present case it was not of such character as to be beyond cure. The first three exceptions must be overruled. [4] The fourth exception is to the overruling of the respondent's motion in arrest of judgment. The ground of this motion as therein stated is "that it [the complaint] attempts to set out two separate and distinct offenses." This literally construed points out no error. It is entirely proper to set out two separate and distinct offenses in a complaint, provided they are of the same nature and are set forth in different counts. The prosecutor may be required to make his election, but this is not by reason of any fault or error in the complaint or indictment. Wharton, Crim. Proc. §§ 335-344; Bishop, New Crim. Proc. §§ 424432. [5, 6] The whole record sufficiently shows, however, that what the respondent relies upon is the setting out of two separate and distinct offenses in one count. Operating a motor vehicle "recklessly" with the other elements as defined in the statute is one of fense; operating such a vehicle "while under the influence of intoxicating liquor" is anThe respondent's counsel does not strenu- other and distinct offense, so the respondent ously argue the first three exceptions. In the claims, and both are set forth in one count. second instruction given there was clearly no The position of the state is that: (a) Duerror. If the respondent operated a motor vehicle in a public way so as to endanger the plicity cannot be taken advantage of by molives or safety of the public, and did so reck- tion in arrest of judgment; (b) count not dulessly, he is liable to the penalty of the stat-plicitous; and (c) error, if any, cured by the ute without regard to his condition of sobrie- corrected charge. ty or ebriety. The verdict in the instant case was general, and the respondent relies upon State v. Leavitt, 87 Me. 72, 32 Atl. 787. The judgment in the Leavitt Case was not arrested, but was ordered on the verdict on the ground, however, that the verdict was special and not general. The opinion says: "If * * * ** [2] It is unnecessary to pass upon the alleged error in the charge as originally given, for the right of the presiding justice to correct his instructions, either before or by recalling the jury after their retirement, directing attention specifically to any part of the original charge withdrawn or qualified, has been determined by so many judicial authorithe verdict had been general, ties as to be beyond dispute. Short v. State, 140 Ga. 780, 80 S. E. 12; Com. v. Poisson, would have been well taken." the objection [by motion in arrest] 157 Mass. 510, 32 N. E. 906; People v. Hoffman, 142 Mich. 531, 105 N. W. 857: State v. Furgerson, 152 Mo. 92, 53 S. W. 427; People v. M'Kay, 122 Cal. 628, 55 Pac. 594; Lindsey v. State, 67 Fla. 111, 64 South. 501; State v. Hough, 97 S. C. 24, 81 S. E. 187; Moody v. State, 13 Okl. Cr. 327, 164 Pac. 676; Gather v. State (Tex. Cr. App.) 81 S. W. 717; State v. Miller, 78 Wash. 268, 138 Pac. 896; Rodermund v. State, 167 Wis. 577, 168 N. W. 390; Hardesty v. State, 95 Neb. 839, 146 N. W. 1007. [3] It is true, as said by the Georgia court in the case of Rawlins v. State, 124 Ga. 47, 52 S. E. 8, that This is of course mere dicta. Moreover, the authorities cited in the case yield but slender support to it. It cites State v. Smith, 61 Me. 386, which merely reiterates the elementary proposition that a duplicitous count is bad on demurrer. Com. v. Symonds, 2 Mass. 163; Com. v. Holmes, 119 Mass. 195, and State v. Nelson, 8 N. H. 163, which held that: "When one count in an indictment charges two offenses, distinct in kind and requiring distinct punishments, the objection of duplicity has been allowed in arrest of judgment" -and People v. Wright, 9 Wend. (N. Y.) 193. | authority, points to the same conclusion. Of this latter case a later opinion of the Joinder of offenses in one count of an indictsame court says: ment or complaint violates no fundamental Of the cases cited the only one in point is a case in which the question involved, in the Leavitt Case and in the present one, was confessedly "not particularly considered." No other authority sustaining the respondent's position has been called to our attention. In the case of State v. Berry, 112 Me. 501, 92 Atl. 619, a motion in arrest of judgment was sustained, but not by reason of duplicity. The earlier Maine cases, the courts of other states and the text-books with substantial uniformity hold and declare that a motion in arrest of judgment cannot, except under conditions not present in the pending case, be grounded on duplicity. "If two distinct offenses had been sufficiently described in the same count, it would seem that the objection should have been taken by a motion to quash or by a demurrer." State v. Palmer, 35 Me. 13. "If the objection [duplicity] was ever tenable, it comes too late after verdict." State v. Dolan, 69 Me. 576. "The objection that an indictment is bad for duplicity should be made by demurrer, by motion to quash, or by motion that the prosecution be required to elect between the offenses, and a failure to do so waives the objection, and it cannot be raised by motion in arrest of judgment." 12 Cyc. 762. "It is too late after verdict to object to duplicity in an indictment or information." 14 R. C. L. 212. right. Trial for crime without jurisdiction to try or without a sufficient charge of crime is a denial of due process of law. Bishop's New Crim. Proc. § 77. To be tried upon an indictment free from duplicity is a privilege which may be waived. Bishop, § 422. If a respondent would avail himself of his privilege, he should do so when he first feels the hurt of the duplicity. When this is done the prosecutor may, by entering a nol. pros. as to the objectionable part of the indictment, accord to the respondent his full privilege and proceed with the case. By failing to seasonably object the respondent waives his privilege. He is not permitted to revive it after verdict by a motion in arrest of judgment. Bishop, § 442. There are authorities, several of which are cited in State v. Leavitt, 87 Me. 72, 32 Atl. 787, holding that joinder in one count of distinct offenses requiring different penalties may be taken advantage of by motion in arrest of judgment. But these authorities are not applicable to the pending case. This conclusion (that the respondent failed to seasonably set up duplicity) is decisive of the case. We do not need to consider the other points made by the state. Exceptions overruled. Judgment for the state. (135 Md. 208) LELAND V. EMPIRE ENGINEERING CO. (No. 31.) "The better view is that it [duplicity] cannot be made the subject of a motion in arrest of judgment." Wharton's Crim. Proc. (10th Ed.) (Court of Appeals of Maryland. Nov. 21, 1919.) $304. See, also, Bishop on Crim. Procedure, § 443. The rule as stated in the earlier Maine cases and by text-books is supported by many authorities, a few of which are as follows: Kilbourn v. State, 9 Conn. 560; State v. Manley, 82 Vt. 556, 74 Atl. 231; State v. Hicks, 170 Mo. App. 183, 155 S. W. 482; State v. Calhoun, 67 W. Va. 666, 69 S. E. 1098; Cornell v. State, 104 Wis. 527, 80 N. W. 745; State v. Wilson, 121 N. C. 650, 28 S. E. 416; Com. v. Tuck, 20 Pick. (Mass.) 361; Pooler v. Com. v. Tuck, 20 Pick. (Mass.) 361; Pooler V. U. S., 127 Fed. 515, 62 C. C. A. 307; Irvin v. State, 52 Fla. 51, 41 South. 785, 10 Ann. Cas. 1003; State v. Armstrong, 106 Mo. 395, 16 S. W. 609, 13 L. R. A. 419, 27 Am. St. Rep. 361; White v. People, 8 Colo. App. 289, 45 Pac. 540; Wilkinson v. State, 77 Miss. 705, 27 South. 639. The authorities with substantial unanimity are opposed to the sustaining of the fourth exception. Reason, independently of direct 1. EVIDENCE 519-EXPERT TESTIMONY AS TO SAFETY OF POST INADMISSIBLE. In an action for personal injuries by one who fell from a stringer of a pier being coning gave way, it was not proper to question an structed, when a post around which he was goexpert as to whether the posts were sufficiently secured to make it reasonably safe for a man to walk on the stringers and pass around them, plaintiff's own evidence showing that about 50 other posts, which he passed around, were fastened securely, and evidence that the post which fell was possibly left unfastened by mistake, as it did not require an expert to prove that a post left unfastened was not sufficiently secured to make it reasonably safe. 2. APPEAL AND ERROR 1047(3)—STRIKING OUT EXPERT'S TESTIMONY WITH STATEMENT OF WHAT ANSWER IMPORTED HARMLESS. In an action for personal injuries, where expert testified that in erecting posts on stringers in the construction of piers he always tried to use larger nails than those used by defendant, but refused to testify as to whether or not the method of securing the posts used by defend |