State v. Hessenkamp

Lowe, J.

Tbe regularity of tbe proceeding is questioned upon several grounds.

1. Indictment: sufficieny. First. It is objected that tbe indictment is not sufficient in several particulars, tbe most plausible of wbicb is, that it does not name tbe offense. Technically, this is true. But it does describe tbe offense in tbe language of tbe statute, and states tbe acts of tbe defendant constituting the offense so clearly that be could not mistake tbe matter for wbicb be stood charged. When this is done, according to § 4659, tbe indictment shall be deemed sufficient; and, indeed, we give tbe same answer to all tbe objections made, either in argument or by way of assignment, to tbe indictment before us. When subjected to tbe tests suggested in tbe foregoing section of tbe Code, we are unable to discover any defects wbicb would justify us in bolding tbe same to be bad on demurrer.

*27 2. Malice: when implied. II. Objection is made to a portion of the court’s charge to the jury, embraced in the following language :

“ In order to find the defendant guilty, you must find that he did the act willfully and maliciously. But if you find that the defendant knew that the railroad was at the time being used and run for the purpose of carrying freight and passengers over the road, and that he intended to place the obstructions on the road, malice will be implied, unless the defendant, on his part, shall have satisfied you that the obstructions were put upon the track for a lawful purpose.”

We understand the point of the objection to go to the implication of malice under such a state of case. Malice not unfrequently is an element of crime, and we do not see why, in this as in other cases, it may not be shown inferentially. Its presence is often most difficult. to be proved affirmatively; but as the law presumes that the party intends the consequences which would naturally flow from his acts, so, when such results prove to be criminal and mischievous, the law will imply that the party acted maliciously. We think the charge was well put, and stated the law correctly.

3. Criminal law: railroad track. HI. The defendant asked two instructions, in substance as follows:

That, if the jury beleive from the evidence, that the defendant owns the land where the obstruction was laid upon the railroad track, and the railroad company had not obtained the right of way over the same, then the defendant had a right to place what he pleased upon his own land, and should be acquitted.

This the court refused; and its ruling was so obviously right that we can scarcely believe that it is expected of us to undertake a vindication of its correctness.

Another objection, equally unfounded, is made to the *28 decision of the court, refusing as evidence tbe introduction of a certain instrument of writing, which showed, on the one hand, that he had granted the right of way to said company for a consideration named, and, on the other, that the company had agreed to secure the crossings by cattle guards at each inclosure and from the road in three years. In connection with this instrument, the defendant offered to prove that the alleged obstruction had been placed on the trade where it passed over his lands. Such testimony could be offered but for one object, namely, to justify the unlawful act. But we need not say, that there can be no principle of law found anywhere that would recognize such a defense. If the railway company had failed to observe the covenants of their contract, the law afforded the defendant an ample and prompt civil remedy, and would not, of course, tolerate a resort to a felony which might imperil the lives of many innocent parties.

There may be considerations connected with this unfortunate transaction which would address themselves with force to the clemency of the executive of the State; but we are compelled to say that the record before us presents no such error or irregularity in the proceedings as would justify disturbing the same, and the judgment below will be

Affirmed.