State v. Kluseman
| Decision Date | 22 June 1893 |
| Citation | 55 N.W. 741,53 Minn. 541 |
| Parties | State of Minnesota v. Henry Kluseman et al |
| Court | Minnesota Supreme Court |
Submitted on briefs June 1, 1893.
Henry Kluseman, Frederick Schumacher and Albert Schlenz were indicted in the District Court of Norman County, Ira B Mills, J., and convicted under Penal Code, § 476, of placing obstructions upon the track of a railway. Questions of law arose upon the trial which in the opinion of the court were so important as to require the decision of this court. The defendants desiring it, the case was reported so as to present the questions, and certified here. 1878 G. S. ch 117, § 11.
The defendants were boys fifteen to sixteen years of age. On June 16, 1891, they stole a pint bottle of whisky from the father of one of them, and started on foot to attend a country dance. They drank the whisky on the road, and arriving at the track of the St. Paul, Minneapolis and Manitoba Railway, just before dark, they piled ties in three places on the track and waited to see the effect on the passenger train from the north then about due. The train was behind time, and the boys went on, before it arrived. The obstructions were discovered and the boys arrested and indicted. The following is a copy of the indictment:
INDICTMENT.
Henry Kluseman, Frederick Schumacher and Albert Schlenz are accused by the grand jury of the county of Norman, in the state of Minnesota, by this indictment of the crime of malicious injury to railroad tracks committed as follows:
The said Henry Kluseman, Frederick Schumacher and Albert Schlenz on the 16th day of June, A. D. 1891, at the township of Pleasant View, in the county of Norman and state of Minnesota, did wilfully, wrongfully, maliciously and feloniously place an obstruction, to-wit: five piles of large, heavy oak railway cross-ties, all of which piles being within a distance of seven hundred feet upon the track of a certain railway then owned by the St. Paul, Minneapolis & Manitoba Railway Company, a corporation duly organized created and existing under the laws of the state of Minnesota, and upon which track the Great Northern Railway Company, a corporation duly organized, created and existing under the laws of the state of Minnesota, was then and there operating and running a train of railway cars consisting of seven passenger coaches and one mail car and one baggage car, and that the said railway and said trains were then and there being operated and run by steam by the said Great Northern Railway Company as aforesaid, whereby and by reason whereof, the safety of many persons was then and there endangered, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Minnesota.
Dated at the village Ada, in the county of Norman and state of Minnesota, this 10th day of November, A. D. 1892.
Jesse Barnes,
Foreman of the Grand Jury.
The defendants, being arraigned, pleaded not guilty. In impaneling the trial jury, P. H. Aamodt was drawn as a juror, and was challenged by the state for implied bias. He had a civil suit pending in the court and to be tried at that term. W. W. Calkins, one of the attorneys defending the boys, was attorney for the juror. The Judge thereupon found the challenge true, and rejected the juror. To this the defendants excepted.
The defendants each offered himself as a witness in his own behalf, and admitted the charge, but each testified that they drank the whisky before reaching the railroad, felt good, and put the ties on the track for fun, to see the train knock them off. Each testified that he did not know that evening, that it was wrong to put the ties on the track, or that they might throw the train off the track.
The case will be remanded to the court below for further proceedings.
W. W. Calkins and O. Mosness, for defendants.
The indictment in this case charges that the "defendants did place an obstruction, to-wit: five piles of large, oak railway cross-ties, all of which piles being within a distance of seven hundred feet upon the track of a certain railway," etc. This does not state with sufficient certainty, nor with any certainty, that the piles were placed upon the track. It seems to us that there can be but two constructions placed upon the language: 1st. That the piles were not upon the track at all, but were within a distance of 700 feet of the track. 2nd. It does not state that they were placed there by defendants, non constat, but that they were on the track before, and that defendants, in placing them, moved them off. It cannot well mean 700 feet along the track, for all the piles constitute but one obstruction. This language is entirely too ambiguous and too uncertain.
"Standing in the relation of attorney and client" cannot be construed to mean, that relation between the juror and the defendant's attorney. The relation of attorney and client must exist between the juror and the accused. The relation intended by the statute cannot exist unless either the juror or the defendant, is an attorney. 1878 G. S. ch. 116, § 19.
All the facts with reference to the acts and conduct of the defendants at the time of, and after the offense, were put in evidence, and tended to support the affirmation of defendants that they did not know the nature or consequences of their act. The fact that they expected to remain and see the train push the ties off the track, and that each of them told their...
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