State v. Mead

27 Vt. 722 | Vt. | 1855

The opinion of the court was delivered by

Bennett, J.

This indictment is intended to be grounded upon the 65th section of the general railroad law. See Comp. Statutes, p. 204. That section makes it a misdemeanor in any person who shall willfully do, or cause to be done any acts by which any building, fence, construction or work of any railroad corporation, or any engine, machine or structure, or any matter or thing appertaining to the same, shall be stopped, obstructed, impaired, weakened, injured or destroyed.

To bring a case within this section, the persons obstructed in the enjoyment of their rights must be a railroad corporation, and this is essential to constitute the offence. In the indictment the injury is alleged to be done to machines, engines and cars of the Vermont Central Railroad Company. The expression “railroad company” does not ex vi termini import that of necessity they must be a corporation under the laws of this state or any other state; and we cannot, unless it is so alleged, take judicial notice that such is the fact. This averment in the indictment would be sustained by proof that the railroad company was a voluntary association.

If it had been avered that the injury had been done to the railroad corporation, it is quite another question what proof would have been necessary to have sustained it, and whether proof of the existence of a corporation de facto would have satisfied it.

It cannot help the plaintiff out of the difficulty because the chars ter of the Vermont Central Kailroad Company declares it to be a public act. This may excuse the want of pleading the act, but not the want of a sufficient averment of facts to show that an offence had been committed. In this case the averment “ railroad company ” is equivocal. It may mean a corporation or a voluntary association, and the intendment is against the pleader.

The least that can be required, is an averment that the railroad company was a corporation, and whether it would be necessary to go further in the averments, it is not necessary to inquire. The questions raised on the trial become immaterial and need not be considered.

The judgment of this court is that the judgment of the county court, overruling the motion in arrest, be reversed, and judgment that the indictment is insufficient.