Riley v. State
| Citation | 95 Ind. 446 |
| Decision Date | 26 May 1884 |
| Docket Number | 11,493 |
| Parties | Riley et al. v. The State |
| Court | Supreme Court of Indiana |
From the Marshall Circuit Court.
Judgment reversed, with instruction to the court below to sustain the appellants' motion for a new trial. The proper order will be given for the return of the appellants to the jailer of the county in which the trial occurred.
B. L Crawford, H. Corbin and C. Kellison, for appellants.
F. T Hord, Attorney General, E. C. Martindale and W. B. Hord, for the State.
Indictment in seven counts, charging the appellants with placing an obstruction upon the track of the Pittsburgh, Fort Wayne and Chicago Railroad, so as to endanger the passage of trains, and to throw the engine and cars from the track. The appellants moved to quash each count of the indictment, which was sustained as to the first and overruled as to the others. Upon a trial by jury, the appellants were found guilty and each sentenced to the State prison for two years. Their motion for a new trial, made at the proper time, was overruled.
The obstruction alleged to have been placed upon the railroad track by the appellants was an iron wedge. Some of the counts in the indictment charged that the appellants feloniously, wilfully and maliciously placed the obstruction upon the track so as to endanger the passage of trains, and in other counts it was charged that they placed the obstruction upon the track in order to throw the engine and cars running upon the railroad from such track. The objection made to each count in the indictment was that it was not averred, nor shown by a statement of the facts, that the iron wedge was of such character and dimensions as to endanger the passage of trains, or to throw the engine or cars from the track. Such averment or statement of facts was not necessary. The crime consists in placing an obstruction upon a railroad track, with the intent to obstruct the passage of trains or to throw the engine or cars from the track. It is sufficient to make the averments substantially in the language of the statute defining the offence. Section 1960, R. S. 1881. We suppose that if the obstruction was apparently sufficient to endanger the passage of trains, or to throw the engine or cars from the track, the offender ought not to be acquitted merely because, through a lack of judgment, he did not provide sufficient means to accomplish his criminal purpose. The nature of the obstruction would, of course, be proper for consideration in determining the question of intent. Where the alleged obstruction was manifestly inadequate to endanger the passage of a train, or to throw an engine or a car from the track, it might well be supposed that there was no felonious intent in placing it upon the track. But if the obstruction was apparently sufficient for this purpose, the intent, the existence of which is essential to make out the offence, might be inferred, though, in fact, the obstruction was incapable of doing injury. But these are questions of fact. As to the indictment, it is sufficient to charge in appropriate language that the obstruction was placed upon the track with the intent to endanger the passage of trains, or to throw the engine or cars from the track, without giving a description or the dimensions of the obstruction. Each count of the indictment, held good by the court below, was properly so held.
One of the grounds upon which the appellants based their motion for a new trial was the separation of the jury, without leave of the court, after their retirement to deliberate upon their verdict. It appears by affidavits, filed in support of the motion for a new trial, that as many as three of the jurors, at various times during the night, left the room in which they were deliberating, and went down stairs, out of the court-house into the court-house yard, remaining absent each time ten minutes or more. This occurred without leave of court, without the consent of the appellants, and the jurors in thus separating from their fellows were not attended by any officer. In going out and returning, they passed persons standing in the hall of the courthouse. The jurors guilty of this misconduct filed affidavits to the effect that during their absence from the room they did not talk to any one, nor did any one talk to them, about the case.
It is the duty of the officer who has charge of the jury "to keep them together in some private and convenient place, without food, except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, or to ask them whether they have agreed upon their verdict, and return them into court, when so agreed, or when ordered by the court." Section 1828, R. S. 1881.
Relative to new trials in criminal cases, section 1842, R. S. 1881, provides:
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Semon v. State
... ... indictment or information is sufficient if the charge is made ... substantially in the language of the statute defining the ... offense. Benham v. State, 116 Ind. 112, 18 ... N.E. 454; [158 Ind. 57] Stewart v. State, ... 111 Ind. 554, 13 N.E. 59; State v. Miller, ... 98 Ind. 70; Riley v. State, 95 Ind. 446; ... Betts v. State, 93 Ind. 375 ... Here ... the charge is not only in language equivalent to the words of ... the statute, but it is in substantial compliance with the ... first insistence of appellant. The averment is that the ... defendant ... ...
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...from the records that the appellants could not have been harmed. Clearly the burden in this respect is upon the State. In Riley v. State, (1884) 95 Ind. 446, the jury had separated without permission of the court. In that case, it was urged that the error was harmless because the affidavits......
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