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OBSTRUCTING ROAD-MUST BE WILLFUL.

SCHUBERT v. STATE.

[16 Tex. (App.) 645.]

In the Court of Appeal of Texas, 1884.

1. Obstruction of Public Road-Must be Willful. Even in cases where the obstruction is placed upon the road proper, the evidence must show that the obstruction was willful. A fortiori, when the obstruction is consequential - arises from an act which the accused had the legal right to do the evidence must show that the act was willfully done, and with a view to such indirect or consequential effects.

2. When Used in a Penal Statute, the term "willful" means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful.

APPEAL from the County Court of Hays. Tried below before the Hon. E. R. KONE, County Judge. The opinion discloses the nature of the case. The punishment imposed was a fine of twenty-five dollars. Hutchison & Franklin, for the appellant. J. H. Burts, Assistant Attorney-General, for the State.

WHITE, Presiding Judge. The road alleged to have been obstructed was a public road, crossing the Blanco River at a ford on defendant's land. Some distance, several hundred yards, below the ford, defendant erected a dam across said river on his own land, for the purpose of operating machinery to irrigate his garden. By the erection of this dam the water was raised or backed up at the ford so as to somewhat interfere with and impede the travel across the river.

It will be noted that the obstruction complained of is not one placed directly in or across the road. It was one entirely consequential upon another act of defendant, which in itself was legal, and in its purposes legitimate, in the use of his own property. Our statute in all cases makes the criminality of this particular offense of obstructing or injuring a public road to depend upon the fact that the act constituting the offense was "willfully" done.1

If necessary that the act should be shown to have been" willfully" committed, even in cases of direct obstruction as where the obstruction is placed by the defendant directly across or in the road a fortiori where the obstruction is consequential or indirect, and is occasioned by an act in itself legal, the State should establish beyond all question that the act was willfully done, and with a view to such indirect or consequential effects.2

The word "willfully" is the word used in the statute to characterize

I Penal Code, art. 405; Brinkoeter v. State, 14 Tex. (App.) 67.

2 Prine v. State, 36 Ala. 244.

the offense. "When used in a penal statute, the word 'willful' means more than it does in common parlance. It means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful.' 1

The evidence fails to show that the acts complained of, and upon which this conviction is based, were "willfully" done. The judgment is reversed and the cause remanded.

Reversed and remanded.

OBSTRUCTING RAILROAD TRAIN - PASSENGER PULLING BELL ROPE.

COм. v. KILLIAN.

[109 Mass. 345.]

In the Supreme Judicial Court of Massachusetts, 1872.

An Indictment under the Massachusetts statute for obstructing a railroad train and endangering the safety of the passengers, can not be maintained against a passenger, who, from whatever motive, pulled a signal rope attached to a bell upon the engine and thereby caused the train to be stopped and the safety of the passengers to be endangered.

Indictment on the General Statutes, 2 averring that the defendant at West Roxbury in the County of Norfolk, on September 18, 1871, with force and arms, "feloniously, willfully, and maliciously the engine and carriages of the property of the Boston and Providence Railroad Corporation, then and there lawfully passing over and along the railroad of said corporation, there located and situate, did obstruct, by then and there pulling the signal rope attached to and connected with the bell in and upon the said engine, by reason whereof the said engine and carriages were then and there caused to be stopped, hindered and delayed, and the safety of divers persons then and there lawfully riding, passing, and being conveyed on and upon the said railroad, at West Roxbury aforesaid, in the county aforesaid, in and upon the engine and carriages aforesaid, then and there did endanger," against the peace of the Commonwealth and contrary to the form of the statute. In the Superior Court, before the jury were impaneled, the defendant moved to quash the indictment "because it does not set forth any offense known to the laws of this Commonwealth according to the laws thereof," and "because it is informal and insufficient;" and the motion was overruled.

1 Thomas v. State, 13 Tex. (App.) 200.

2 ch. 63, sec. 7.

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At the trial, before SCUDDER, J., "evidence was introduced for the prosecution as follows: The conductor of the train leaving Boston for Dedham at half past six o'clock in the afternoon of September 18, 1871, testified that between the Boylston and Jamaica Plain stations he noticed that the bell rope was pulled, the whistle sounded, and the train stopped; that he went through the train to learn who pulled the rope, and found on the rear platform of the rear car the defendant, who was pointed out to him as the boy who pulled the bell-rope;' that he had a conversation with the defendant as to who pulled the bell rope; and that the defendant said he did not know who it was, but that the man who pulled it had just jumped off. The conductor further testified that an express freight train, going in the same direction and on the same rails with his train, was due to start from Boston at twenty minutes of seven o'clock; that his train was about two minutes late in starting from Boston, and was delayed, when stopped as above stated, about five minutes; and that he sent back a man to 'flag' said freight train behind him, to avoid the danger of collision. Three other witnesses testified to the pulling of the bell rope by the defendant, and to the stopping of the train. Both the conductor and the engineer testified that the pulling of the bell rope on the train, and the ringing of the engine bell thereby, was the only danger signal in use, and was notice to the engineer to whistle' down brakes' and stop the train, as was done in this case. It was also in evidence that the defendant did not get off when the train stopped, and that he had paid his fare to the Forest Hill station, which was the second station beyond the point where the train was then stopped. It appeared further that the defendant was warned by a fellow-passenger not to pull the bell rope, and that he told the passenger to 'shut up.

The defendant offered no evidence in his own behalf, but requested the judge to instruct the jury "that no crime had been proved against him by the evidence; that the evidence was not sufficient to warrant a verdict against him; and that no crime or offense known to the laws of this Commonwealth had been proved against him." But the judge declined so to rule, and instructed the jury "that, if they found that the defendant pulled the bell rope of the train as alleged in the indictment, that was an obstruction within the meaning and intent of the statute." The jury returned a verdict of guilty, and the defendant alleged excep

tions.

J. O. Teele, for the defendant. .

C. R. Train, Attorney-General, for the Commonwealth.

COLT, J. Punishment is provided by the General Statutes,1 for who

1 ch. 63, sec. 107.

ever "obstructs any engine or carriage passing upon a railroad, or endangers the safety of persons conveyed in or upon the same, or aids or assists therein." The defendant is indicted for obstructing a train of cars by pulling the signal rope attached to a bell upon the engine, whereby the train was stopped and the safety of passengers endangered. There was evidence at the trial, that the defendant was a passenger at the time of committing the offense charged, and that pulling the bell rope was ordinarily used as a danger signal, and as notice to the engineer to stop the train. In the opinion of a majority of the court, this evidence fails to prove a criminal obstruction of the train, within the reasonable meaning of the statute.

The law was not intended to apply to a case where the train is stopped by an engineer, or other person having control, in consequence of a false signal communicated in this manner by a passenger. That is a proper and a contemplated mode of stopping the train, to be used in case of accident or necessity, not only by officers in charge, but by passengers; and the act, however improper, and whatever may be its motive, can not be regarded as ordinarily or directly dangerous to any If the terms of the statute do not imply an actual physical obstruction, they at least require something more than the use of the agencies here employed.

one.

The case of Queen v. Hadfield,1 relied upon by the government, was under the English statute of 24 and 25 Victoria.2 The prisoner unlawfully altered some railway signals at a railway station. The alteration caused a train, which would have passed the station without slackening speed, to slacken speed and to come to nearly a stand; and another train going in the same direction and on the same rails was due at the station in half an hour. This was held by a divided court to be an obstruction within the meaning of section 36, which enacts that whosoever by any unlawful act, etc., obstructs any engine or carriage using any railway, shall be guilty of a misdemeanor. But section 35 of the same statute makes it felony to obstruct a train by certain unlawful acts there named, including the altering of signals, and it was thought that the acts specified were intended to be also included in section 36 by the phrase any unlawful acts." The interpretation of our statute is not thus aided; and it can not be thus enlarged.

66

1 L. R. 1 C. C. 253.

Exceptions sustained.

2 ch. 97, secs. 35, 36.

OBSTRUCTING RAILROAD TRACK-GIST OF OFFENSE.

BULLION V. STATE.

[7 Tex. (App.) 462.]

In the Court of Appeals of Texas, 1879.

1. Obstructing Railroad Track. — To warrant a conviction, under a statute, for placing an obstruction on a railroad track, the evidence must show that the obstruction was such as might have endangered human life, - which is the gist of the offense. This is not proved by evidence that the defendant placed across a railroad track a piece of iron bar which the witness was unable to remove with his foot, but did remove with his hands.

2. Same-Evidence. - The State proved the obstruction to have been a piece of railroad iron, six or eight feet in length, put across a track, and that it was removed before any train passed. To show that human life might have been endangered thereby, the State could and should have proved whether it was on a level or on an embankment, the main track or switch, and usual speed of trains thereat.

APPEAL from the District Court of Dallas. Tried below before the Hon. G. L. ALDREDGE.

The offense charged being a felony punishable by confinement in the penitentiary for not less than two nor more than seven years, the jury assessed the appellant's term at three years.

No brief for the appellant. Thomas Ball, Assistant Attorney-General, for the State.

WHITE, P. J. The prosecution in this case was had under provisions of article 2342,1 as follows: "If any person shall willfully place any obstruction upon the track of any railroad, or remove any rail therefrom, or in any other way injure such road, or shall do any damage to any railroad car, whereby the life of any person might be endangered, he shall be punished by imprisonment in the penitentiary not less than two nor more than seven years."

As presented in the record, we are not satisfied with the sufficiency of the evidence to sustain the conviction. Even if the statements made by the principal witness for the prosecution, as far as they go, be true, he does not state how the obstruction which he says defendant placed upon the railroad track, might or would have endangered human life. This was the gist of the offense charged. If the obstruction was sufficient to throw a passsing train, or any part of it, from the track, the prosecution should at least have attempted to show that fact. The witness leaves this fact a matter entirely of inference, and we can not say that such inference is necessarily inevitable from the facts deposed to by him, viz.: "I tried to throw the piece of railroad bar-iron off the track with my

1 Pasc. Dig. (Rev. Penal Code, art, 678.)

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