State v. Johns

• Decision Date: 05 November 1894
• Citation: 27 S.W. 1115,124 Mo. 379
• Parties: The State v. Johns et al., Appellants
• Court: Missouri Supreme Court

27 S.W. 1115

124 Mo. 379

The State v. Johns et al., Appellants

Supreme Court of Missouri, Second Division

November 5, 1894

Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.

Affirmed.

Dysart & Mitchell for appellants.

(1) The crime charged is a statutory offense, and the guilt of the defendants depends solely upon the intent or purpose they had in view in stopping the train. Sec. 3588. (2) A penal statute is construed liberally as in favor of a defendant, and strictly as against him. And no person is to be made subject to such statutes by implication. State v. Bryant, 90 Mo. 534. (3) An indictment for enticing away a female under the age of eighteen years from her father, for the purpose of concubinage and prostitution, is not sustained by proof that defendant's purpose in taking her away was to hide her disgrace and to shield his son, the father of her child, from prosecution, although the defendant had sexual intercourse with her on the way. State v. Gibson, 108 Mo. 575. (4) As illustrating the same principle, where the intention and purpose of the act is constitutive of the crime, see State v. Maloney, 105 Mo. 10; State v Hayes, 105 Mo. 76, and 101 Mo. 316. (5) It has been held by high authority that the setting fire to a jail by a prisoner for the purpose of making his escape, is not arson although the jail is to be deemed as an inhabited dwelling house within the meaning of the statute. People v Coterel, 18 Johns. (N. Y.) 115; State v. Mitchell, 5 Ired. (N. C.) 350. (6) It is evident that a person would not be guilty of burglary for breaking into a dwelling house for the purpose of getting possession of goods belonging to him, or to obtain possession of the building. He would be guilty of trespass, and of forcible entry and detainer, surely not burglary, because the purpose to steal or commit a felony would be absent. (7) The court erred in permitting counsel for the state, over the objection of defendants, to argue and comment upon the case as if brought under section 3589, for endangering the life of the passengers, and in refusing to allow counsel for defendants, in reply, to read and comment upon sections 3588 and 3589, for the purpose of showing the difference between said sections, and that peril to the passengers was not charged.

R. F. Walker, Attorney General, Morton Jourdan, Assistant Attorney General, and R. W. Barrow, Prosecuting Attorney, for the state.

(1) The indictment is sufficient. It clearly charges the offense of which the defendants have been convicted. R. S. 1889, sec. 2588. A similar indictment under the Texas statute has been approved in Barton v. State, 28 Tex. Ct. App. 483. The same is true in Kentucky. Collins v. Commonwealth, 26 S.W. 1. (2) It was shown that the rail of the track was displaced which, caused the obstructing of the passage of the cars; the crime was then complete. (3) Every person is presumed to intend the natural results of his own acts. State v. Patterson, 116 Mo. 505. (4) The admission of defendant Johns in his testimony clearly establishes the crime. (5) The prosecuting attorney properly commented on the peril to which the lives of passengers were exposed by the acts of defendants.

OPINION

Gantt, P. J.

At the September term, 1893, of the Macon circuit court defendants were indicted under section 3588, Revised Statutes of Missouri, 1889, which provides that "every person who shall willfully and maliciously place any obstruction by stones, logs or other things on the track of any railroad, or shall tear up or remove any portion of a railroad, or the works thereof, with intent to obstruct the passage of a car or cars thereon, or throw them off the track, shall, upon conviction, be imprisoned in the penitentiary not exceeding twenty years." They were jointly tried and convicted at the same term and sentenced to imprisonment in the penitentiary for two years, from which they appeal.

The indictment charges that the defendants did, on the third day of August, 1893, in Macon county, loosen and remove a rail on the Wabash railroad, "with the intent then and there, willfully, maliciously and feloniously, to obstruct the passage of a train of cars, then next to come along said track; and did then and there in manner and by the acts aforesaid, willfully, maliciously and feloniously obstruct the passage of a train of cars carrying passengers, along and over said railroad against the peace and dignity of the state." The defendants are each about eighteen years of age.

On the night of the third of August, 1893, the defendant, Harley Johns, signaled and stopped the passenger train coming from the north near a bridge some three quarters of a mile north of Atlanta, a station on the Wabash railroad in Macon county. When the train stopped Johns told the engineer and conductor that train wreckers had been interfering with the track; that he had overheard them talking, and that he had come to signal and warn the train. The engineer and Johns walked down the track, and the train slowed down after them, and at a point about one fourth of a mile south from the place where the train was stopped they found a loose rail.

It was the east rail and the spikes had been drawn at the north end of the rail, and this end was pushed out of line some fifteen or eighteen inches. The rail was put in place and the train passed on, having been delayed about thirty minutes.

The officers of the railroad company instituted an investigation, and, prior to the arrest of the defendants, they both made a confession, admitting that they had drawn the spikes and turned out the end of the rail, and then arranged to signal and stop the train before it reached the place where the end of the rail was moved out. There is no conflict of evidence as to the intent and purpose of the defendants. It was to remove the rail and then notify the engineer of the next train and thus commend themselves to the railroad officials, to have them believe that they had rendered a signal and timely service, and thereby to obtain some reward, by way of promotion in the service of the company, or otherwise. Johns was, or had been in the service of the company, and his father was, and still is, station agent at Atlanta; he had access to the office at Atlanta, and knew the time of the arrival and departure of the trains at that town. The evidence shows that defendants took steps to insure the stoppage of the train before it reached the place of removal. The defendant Reynolds had not been in the service of the company, but he was to share in whatever reward and emolument that should be obtained by Johns. The defendants proved a good general reputation, both for honesty and fair dealing, and for truth and veracity, prior to the indictment.

The court, of its own motion, instructed the jury as follows:

"If the jury believe from the evidence that on or about the third day of August, 1893, at the county of Macon and state of Missouri, Harley Johns and S. O Reynolds willfully and maliciously did tear up and remove an iron rail from its place in the track of the Wabash Railroad Company, with...