State v. Orr

Jan 17, 1894

Reporters:: ,
Before:: Granger

Granger, C. J.

crossing ^ . steam engine: I. Thе information upon which the defendant was tried is as follows: “The above named dеfendant is hereby accused of the crime oi driving and operating ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a steam engine over bridges and culverts without planks, for that the defendant, on the twenty-third day of Sеptember; A. D. 1892, at and *614within Madison township, in said county, did willfully and unlawfully drive a steam engine over certain bridges and culverts on the public highway within Jones county, Iowa, without laying down аnd ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍using planks, as required by law, contrary to the statutes in such case made and prоvided.” The following are the important provisions of the act defining the offensе, and providing the punishment.

Section 2. “It shall be unlawful for any person to drive, a steam engine over any bridge or culvert on any public highway in this state without using four strong planks, each to be not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍less than twelve feet long, one foot wide and two inches thiсk; two of said planks to be kept continuously under the wheels of said engine while crossing said bridge or culvert.”

Section 4. “Any owner of a steam engine who by himself, agent оr employee shall violate any of the provisions of’ this act, shall be deemed guilty ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of a misdemeanor, and upon conviction thereof shall for eaсh offense be fined not less than ten dollars, nor more than fifty dollars.”

There was a dеmurrer to the information, on the ground that it did not show that the defendant was the owner of the engine, which was overruled. It should have been sustained. Section 2 of the act defines an offense, and it maybe committed by “any person.” Section 4 providеs a punishment for a violation ‘of the act, but limits it to any owner of a steam enginе.” There is a clear omission, intentional or otherwise, to make a violation of the act ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍punishable by any person except an owner. There is some reason for thinking that it was intended to make the owner liable to punishment for whoever might be the driver of his engine, beeause of the language “by himself, agent, or emрloyee.” But with that construction it is equally necessary, if not more so, that he should be charged in the information as the owner. There is no view of the act under which its penalties can be applied against *615any person except an оwner. The fact, then, of ownership is a material and a necessary one to be averred and proved.

If it should be thought that the penalty for a violation оf section 2 of the act is not that specified in the act, but that provided for generally in cases of misdemeanors where no penalty is prescribed, as in Code, section 3967, it is only necessary to say that the penalty therein prescribed is such as to make the offense triable on indictment, and hence an information would not lie, and. a justice of the peace would be without jurisdiction. But it is very manifеst from the act itself that it was intended to provide the penalties for its violation.

2 _._._. duplicity. II. It is further said that the information is bad, as charging more than one offense. It charges that “the defendant, on the twenty-third day September, 1892, at and within Madison township, in said cоunty, did willfully and unlawfully drive a steam engine over certain bridges and culverts on the public highway within Jones county,” etc. It is not contended to us but that, if the information charges two оr more offensbs, it is bad; but it is urged that it does not, and that wherein it charges the driving across the bridges and culverts it is not unlike an indictment for larceny wherein the taking of several аrticles is charged as one offense. In case of such an indictment the taking оf the articles constitutes but a single act, but one taking. It can not be said that the driving оver two or more bridges and culverts is but one act. The driving over each .bridge or culvert is a separate act that of itself constitutes an offense. The language, is that “it shall be unlawful for any person to drive a steam engine over any bridge оr culvert.” When one bridge is driven over, the offense is complete. The. driving over another is a separate act, and a separate offense. We think thе informa*616tion is bad, as charging more than one offense, and that there can be no legal conviction under it. The judgment is reversed.