McCarty v. State

2 Morr. St. Cas. 1330 | Miss. | 1872

Handy, J.:

This was a prosecution against the plaintiff in error, for placing obstructions on tbe Mississippi Central Railroad.

Tbe indictment contained three counts: tbe first charging, that tbe defendant “wilfully and maliciously did place an obstruction on said railroad, which obstruction was then and there of such a nature as to endanger tbe lives of persons being carried .pn and upon tbe said railroad, contrary to tbe form of tbe statute,” &c.; tbe second charging, that tbe defendant “ did wantonly obstruct tbe Mississippi Central Railroad ”; tbe third charging, that tbe defendant “did maliciously and wilfully place an obstruction on said railroad, by means of which said obstruction so placed on tbe said railroad, a locomotive, being then and there a vehicle of .said Mississippi Central Railroad Company, then and there running on said railroad, did diverge from tbe track thereof, against tbe form of tbe statute,” &c.

The defendant moved tbe court to quash tbe first count, because tbe clause in tbe charter of tbe Mississippi Central Railroad Company, upon which it is based, was not in force. But tbe court overruled tbe motion, and this is tbe first error assigned.

We are of opinion, that tbe clause of tbe charter of tbe railroad referred to, was repealed and superseded by article 164, page 600, of tbe Revised Code. In declaring tbe «Sect and operation to be given to tbe provisions of the Revised Code, it is provided, that tbe acts enacted by that Code, with certain exceptions, should “ supersede all prior statutory acts and clauses therein revised, and thereby repealed,” and that “ all acts and parts of acts, tbe subjects whereof are revised, or consolidated and re-enacted in this Revised Code, or repugnant to tbe provisions therein contained, shall be and tbe same are hereby repealed, subject, however, to any express regulations relating thereto, which may be contained in this Code.” Rev. Code, 43, arts. 2 and 3. It is manifest from these provisions, that it was the intention of the legislature to reduce into one, all the statutory enactments in relation to any particular subject-matter, wherever the same was made a matter of special provision in the Code; to establish a uniform rule upon the subject, and to repeal or modify all prior acts containing different provisions, and coming plainly within the scope of the rules declared by the Code.

The subject-matter of providing for the offense of placing • obstructions on the Mississippi Central Railroad, endangering life or limb, was embraced in the law of the state, as enacted by the charter of that company. That act was, in that respect, a public law of the state, for the punishment of crime; and when the act of the Revised Code, 600, art. 16f, was passed, it was a revision of the law upon the same subject, and the reenactment of a general and uniform rule in relation to it, which, under the provisions of articles 2 and 3, superseded and repealed prior enactments, containing different provisions, including that contained in the charter of this railroad company.

But, notwithstanding this, we think that the court acted properly in refusing to quash the first count in the indictment; because we are of the opinion, that that court is sufficient, under Art. 16f of the Code. It is thereby enacted: first, “ that if any person shall wantonly or maliciously injure or place any implement or obstruction on any railroad in this state,” or, secondly, “ do any other act, by means of which any car or vehicle shall diverge or be thrown from the track thereof, such person shall be imprisoned in the penitentiary not longer than ten, years.” The first count in this indictment charges, that the defendant “wilfully and maliciously did place an obstruction on said railroad;” and adds, “which obstruction was of such a nature as to endanger the lives of persons being carried on said railroad.” This addition, it is true, appears to have been made with reference to the terms employed in the charter of the railroad company, defining one class of obstructions placed upon the road, the punishment of which was thereby provided for. But the constituents of the offense, as declared by the act in the Revised Code, above referred to, are fully stated in the court, independently of this addition, and no additional force is given to tbe charge stated in tbe count,, when tested by tbe article of tbe Code, by tbe superadded words, stating that tbe nature of tbe obstruction was such as to endanger tbe lives of passengers. For not only are the essential words of tbe statute used in tbe count, but they appear, from tbe nature of tbe thing, to impart what is stated in tbe super-added words relative to tbe nature of tbe obstruction. A. wilful and malicious obstruction placed on a railroad, must in its very nature endanger tbe lives of passengers in tbe cars on tbe road; and it was doubtless for this reason, that words in tbe act of tbe Revised Code, descriptive of tbe nature and effect of such obstruction, were omitted as useless and superfluous. -

¥e are, therefore, of opinion, that tbe words in this count, descriptive of tbe nature and effect of tbe obstruction, are surplusage, and might be stricken out without impairing its legal force; and that tbe count is good under the provisions of the Revised Code.

The next assignment of error is, that tbe court overruled tbe motion of tbe defendant to exclude all tbe evidence offered in behalf of tbe state.

Tbe ground of this motion was that tbe indictment charged that tbe offense was committed on tbe first day of June, 1858, and all tbe evidence showed that it was committed on tbe 7th September, 1858, and that tbe evidence was inadmissible to prove that tbe offense was commited after tbe time laid in tbe indictment. But there is no legal force in this position. Tbe indictment was found at October term, 1858, and time was not of the essence of tbe offense. It is admitted by tbe counsel for tbe plaintiff in error that it would have been competent to prove tbe commission of tbe offense at any time anterior to tbe date laid in tbe indictment. But upon tbe same principle by which that would be competent, it may be proved that tbe offense was committed after tbe date laid, but before tbe finding of the bill,; for tbe reason is, that time is not of tbe essence of tbe offense, and it is applicable to any time before tbe finding of tbe bill, or which would show that tbe offense was not barred by tbe statute of limitations, except where time is of tbe essence of tbe offense. Miller v. The State, 33 Miss., 356.

The last error assigned is, that the motion for a new trial should have been sustained, on the ground that the verdict was against the evidence. Without a particular statement of the evidence, we deem it sufficient to say that we consider it ample to warrant the verdict of the defendant’s guilt.

Let the judgment be affirmed.