State v. Brotzer

• Decision Date: 13 November 1912
• Citation: 150 S.W. 1078,246 Mo. 499
• Parties: STATE v. BROTZER.
• Court: Missouri Supreme Court

150 S.W. 1078

246 Mo. 499

STATE v. BROTZER.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

1. STATUTES (§ 165)—CRIMES—REPEAL BY IMPLICATION—MALICE

Rev. St. 1909, § 3336, providing that any person who shall "intentionally and unlawfully injure" telegraph or telephone lines shall be guilty of a misdemeanor, and be punished by imprisonment not over one year or a fine, etc., although passed after, does not repeal by implication section 4597, providing that any person who shall "willfully and maliciously injure" telegraph or telephone lines shall be punished by imprisonment not over two years in the penitentiary or be fined. etc., as they are two distinct offenses ; the first being a misdemeanor and the latter a felony, and since malice is an ingredient of the latter, and not of the first.

2. TELEGRAPHS AND TELEPHONES (§ 25)—INJURIES TO LINES—OFFENSE—MALICE.

Rev. St. 1909, § 4629, authorizing an inference of malice from proof that an act was "wrongfully, intentionally and willfully done," does not dispense with malice as an element of the offense in malicious mischief statutes, but only relieves the state from proof of malice in making a prima facie ease, and the defendant in a prosecution under section 4597, relating to malicious injury to telephone and telegraph lines, could still prove as a defense to the charge that, though the act was unlawfully and intentionally done, it was not done maliciously.

3. CRIMINAL LAW (§ 412) — EVIDENCE STATEMENTS OUT OF COURT—MALICE.

In a prosecution for malicious injury to telephone lines, evidence of statements by defendant that, if the company cut off his service, he would "show them a good time getting by his phone," was competent upon the issue of malice, and as tending to prove the commission of the crime.

4. INDICTMENT AND INFORMATION (§ 176) — VARIANCE—DATE OF OFFENSE.

Where an information contained three counts, differing only as to the date of the offense, respectively, charging it on the 3d, 8th, and 10th of the same month, and after impaneling a jury, the state, being required to elect, entered a nolle prosequi as to the latter two, defendant thereby stood acquitted of the offenses thereby charged, and the state could not show any offense on those days, though, had there been only one count, evidence of commission of the offense at any time within the statute of limitations could have been given.

5. CRIMINAL LAW (§ 814)—INSTRUCTIONS—DISJUNCTIVE.

Where an information alleged that the defendant injured, molested, "and" destroyed the wires, etc., a charge authorizing a conviction if he injured, molested "or" destroyed was erroneous, since the verdict must be responsive to the charge, and definite and certain as to the crime, and, while it is made an offense by the statute either to "injure, molest, or destroy," the instructions authorizing conviction should not be in the disjunctive, but should require a finding of one particular act constituting the offense, or, if more than one of the acts are set forth in the instructions, they should be stated conjunctively.

Appeal from Circuit Court, Livingston County ; Arch B. Davis, Judge.

Otto Brotzer was convicted of malicious injury to telephone wires, and he appeals. Reversed.

P. D. Kitt and S. L. Sheetz, both of Chillicothe, for appellant. Elliott W. Major, Atty. Gen., and Charles G. Revellé, Asst. Atty. Gen., for the State.

KENNISH, J.

At the April term, 1911, of the circuit court of Livingston county, appellant was tried upon an information based upon section 4597, Revised Statutes of 1909, charging him with the felony of willfully and maliciously injuring, molesting, and destroying the lines and wires of the Bedford-Wheeling Telephone Company. He was found guilty, his punishment assessed at a fine of $100, and from the judgment entered on the verdict, he has appealed to this court.

The information was in three counts, which were substantially identical except as to the dates on which the offenses were alleged to have been committed. The first count charged the commission of the offense on February 3, 1910, the second on February 8, 1910, and the third on February 10, 1910. After the jury had been impaneled and sworn to try the cause, the defendant moved that the state be required to elect as to the count upon which the trial should proceed. This "motion was sustained by the court, and the prosecuting attorney elected to stand upon the first count, being the count which charged the offense to have been committed on February 3, 1910, and entered a nolle prosequi as to each of the remaining counts.

The testimony for the state tended to prove the following facts: At the date of the alleged offense, and for some time prior thereto, the Bedford-Wheeling Telephone Company, an unincorporated association, owned telephone lines and exchanges in the towns of Bedford and Wheeling, in Livingston county, and also a telephone line between the two towns. On the telephone poles of the company between the towns were two wires. One of them was used by the company for the transmission of messages between the towns, and the other belonged to and was used by the defendant and other joint owners of the Bedford-Wheeling Telephone Company as a private party wire. In the latter part of December, 1909, the owners of the Bedford-Wheeling Telephone Company held a meeting at which it was determined to extend their lines, and to make an assessment upon each of the joint owners to meet the expense of the extension. The defendant was opposed to the extension, and refused to pay his assessment. One of the managers of the company informed defendant that, unless he paid his assessment, his party line service would be discontinued on the company's switchboards. Defendant replied that, if they cut off his service, he would "show them a good time getting by his phone." The defendant's party line service was discontinued. After that the company's line between Bedford and Wheeling frequently got out of order, especially after the defendant had passed over the road along which the two wires were strung. Several times when investigations were made to ascertain what was wrong with the wires it was found that the two wires had been entangled by one of them being twisted about the other. In the early part of February, 1910, the telephone company employed Ike Jamison, the constable of the township, to watch its line, and endeavor to ascertain who was interfering with the wires. Jamison was a witness at the trial, and testified that on or about February 8, 1910, he saw the defendant and the defendant's wife and son-in-law on the public road along which the wires ran; that defendant was on horseback, but that his wife and son-in-law were each driving a wagon loaded with household goods; that he saw the defendant ride out to the side of the road, reach up to the telephone wires, and twist one of them about the other. Two section hands who were working nearby were called by Jamison to witness the condition of the wires. They corroborated him as to the fact that one of the wires was twisted about the other, but they gave no testimony as to who had committed the act.

The evidence for the defendant tended to show the following facts: The date on which the defendant, his wife, and his son-in-law passed along the road, as testified to by Jamison, was February 8, 1910. The defendant was on horseback, driving some loose horses, and was following the wagons in which his wife and son-in-law were hauling the household goods. At the point where Jamison testified to having seen defendant molest the wires, the lower wire was so near the ground that defendant could not ride under it. When defendant passed that point, he was riding at a rapid gait in order to prevent the loose horses from turning into a byroad, and, in passing under the wires, he took hold of the lower one and threw it up over his head, simply for the purpose of getting it out of his way. The defendant was corroborated by a number of witnesses as to the fact that the wire was so near the ground at the point in question that a person on horseback or in a buggy could not pass beneath the wire without raising it up. The defendant asked an instruction telling the jury that, since the state had entered a nolle prosequi as to the offense alleged to have been committed on February 8, 1910, he could not be convicted of that offense. The court refused the instruction, and by another, which it gave, authorized the jury to convict if they found and believed from the evidence that the offense was committed by the defendant at any time within three years prior to the filing of the information.

1. Appellant maintains that the judgment should be reversed for the reason that section 4597, Revised Statutes of 1909, under which he was prosecuted and convicted, was repealed by a later statute, now section 3336, Revised Statutes of 1909. This question was raised below by demurrer and by motion to quash, both of which were overruled ; also by an instruction which the court refused. Each of such rulings was properly preserved for review. The contention is not that the later act expressly repealed the earlier act, but that the later covered the whole subject of the earlier and was intended as a substitute therefor, and therefore that it operated as a repeal by implication. A proper consideration of this question necessitates a brief review of the legislative history of the two statutes, each of which makes it a criminal offense to injure, molest, or destroy telegraph or telephone property.

The first legislation upon the subject is found in Session Acts 1850-51, p. 287, § 7. That section, as originally enacted, was as follows: "Any person who shall intentionally and unlawfully injure, molest or destroy any of the lines, wires, posts, piers or abutments, or any of the materials or property of such company, owner or association, shall on conviction thereof be deemed guilty of a misdemeanor, and be...