Lead Opinion

FROM ROCKINGHAM CIRCUIT COURT. The indictment clearly charges the statutory offence, which is, wilfully and maliciously placing obstructions on the railroad track whereby life may be endangered. It charges a single act, i. e., the placing upon the track two sleepers and a post. That is the charge. It is alleged to have been done wilfully and maliciously, and that life was endangered.

The evidence, as reported, tended clearly to show all the material facts, and also that the placing the obstructions was one continuous act. That continuous act is so described that it would be impossible so to vary the form of the indictment for the same offence as to prevent the respondent, if he had been acquitted upon this indictment, from availing himself of an acquittal of this indictment as a defence.

The indictment clearly charged the statutory offence, charged it as one offence, and, by the allegation that it was done wilfully and maliciously, precluded all the suppositions of innocence suggested in the argument; and the evidence clearly tended to prove the indictment as laid.

It is said now, by way of defence, that it is admitted by the prosecution that the respondent did not intend to endanger life, but only to annoy certain persons who were unlawfully using the road. The case also finds that life was endangered, and the jury have found that the act was wilful and malicious. *Page 180

In fact, it seems certain that what the respondent did actually intend to do must have endangered the lives of those who were using the hand-car as much as it actually endangered those who were on the train. To the uninstructed eye, it seems as if the danger to persons on a hand-car, going at its full speed, would be fully as great as the danger to persons on a freight train at the ordinary speed of a freight train.

The act, as described by the evidence and admitted by the respondent's counsel, contains all the elements of wilfulness and malice, without resorting to the legal presumption that a man intends the natural consequences of his acts.

I think, therefore, that the objections cannot prevail, and that the conviction must stand.

Concurrence Opinion

In State v. Goulding, 44 N.H. 284, 287, the court say the general rule undoubtedly is, that it is sufficient to describe the offence in the language of the statute; but to this there are many exceptions; — and that case was held to be within an exception, for it was most manifest that there might be cases where a person could lawfully occupy a sidewalk, that is, be and remain upon it "to the annoyance of others." The object of the ordinance was held to be to prevent the encumbering of sidewalks by the illegal use of them. The same is true with respect to the other cases cited by the defendant to the same point. In Commonwealth v. Slack, 19 Pick. 304, where the statute was broad enough in its literal terms to forbid the removal of a dead body under any circumstances — for interment, even — without license, c., the court held that the statute meant removal for the purpose of dissection, and that such intent must be averred and proved. So in Commonwealth v. Collins, 2 Cush. 556, where a statute in general terms forbade the keeping open of a shop, warehouse, c., on the Lord's day, the court upon the whole statute held that it was keeping open for business, or other illegal purpose, that was meant, and therefore that such illegal purpose must be alleged and proved.

Doubtless the rule is, that in framing an indictment on a statute it is not sufficient to pursue the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact in the doing or not doing whereof the offence consists. 2 Hawk., ch. 25, sec. 111.

The requirements of this rule seem to me to be fully met by the indictment in the present case. The statute offence is complete when an obstruction whereby the life of any person may be endangered is wilfully and maliciously placed upon the railroad track. An actual intention to endanger the life of any person does not enter into the crime, as described and defined by the statute. The cases referred to do not apply, because no case can be conceived where the wilful and malicious placing of obstructions upon a railroad track, whereby life may be endangered, would not be unlawful. The statute does not admit of such construction.

The indictment charges the placing of but one obstruction on the track, and is not therefore open to the objection of duplicity. *Page 181

I think, if the two sleepers and one post be regarded as three obstructions, the charge required the jury to agree with respect to at least one of them. It was not possible under the instruction for part of the jurors to rely upon proof as to one obstruction, and part as to another, as the defendant suggests.

The state has treated the whole as one offence, and a conviction upon this indictment must be a bar to any further prosecution for the offence charged in it.

SMITH, J. The indictment charges that the three pieces of wood placed upon the track were an obstruction. It evidently was intended to charge but one, and the language used describes but a single obstruction. If upon the trial the evidence disclosed three separate and distinct obstructions, the government would have been required to elect which of the three it would claim to hold the respondent for, if he had moved for that. I do not see how he has suffered by the course the trial took. If ever again indicted for placing either of the sleepers or the post upon the track of the railroad, the plea of autrefois convict would be a complete bar to such prosecution. And it is apparent from the instructions to the jury that they must have all relied upon the proof as to one obstruction, if not as to two or all.

It was not necessary to allege that the placing of the obstruction upon the railroad track was done with the intention to endanger life. It is alleged that it was done wilfully and maliciously, whereby the lives of persons riding in the cars upon the railroad were endangered, and this fully describes the offence prohibited by the statute.

Exceptions overruled.