Territory v. Lannon

• Decision Date: 16 July 1889
• Parties: TERRITORY v. LANNON
• Court: Montana Supreme Court

22 P. 495

9 Mont. 1

TERRITORY v. LANNON

Supreme Court of Montana

July 16, 1889

Appeal from district court, Deer Lodge county.

Cole & Whitehill, for appellant.

John B Clayberg, Atty. Gen., for the Territory.

BLAKE C.J.

The appellant was indicted and convicted for defacing and obliterating a written notice in violation of the following section of the criminal laws of this territory: "If any person shall intentionally deface or obliterate, tear or destroy, in whole or in part, any record, copy, or transcript or extract from or of any law of the United States or of this territory, or any proclamation, advertisement, or notification, set up at any place in this territory by authority of any law of the United States or of this territory, or by order of any court, such person, on conviction, shall be fined not more than one hundred dollars nor less than twenty dollars, or be imprisoned in the county jail not more than one month: provided, this section shall not extend to defacing, tearing down, obliterating, or destroying any law, proclamation, publication, notification advertisement, or order after the time for which the same was by law to remain set up shall have expired." Comp. St div. 4, § 173. The indictment alleges, in substance, that there was posted a notice, required by law to be posted, stating that a petition would be presented to the board of commissioners of the county of Deer Lodge at their next session to have a new county road laid out; and that the appellant defaced and obliterated said notice when the time in which the law required said notice to be posted had not expired. There is no controversy respecting the facts; and it appears that the notice mentioned in the indictment was posted at the depot of the Northern Pacific Railroad Company at Bearmouth, in Deer Lodge county, and that the appellant pasted thereon a piece of paper which covered the part containing the written matter.

Was this a notification set up by authority of the law of the territory? The act concerning roads and highways provides that, "when any petition shall be presented for the action of the county commissioners for the laying out alteration, or vacation of any county road, it shall be accompanied by satisfactory proof that notice has been given by advertisement posted on the front door of the county clerk's office, and in three public places in the vicinity of said road or proposed road, thirty days previous to the presentation of said petition to the county commissioners. Proof of the posting of said notices, giving time and place, shall be made by affidavit, which shall be filed with said petition." Comp. St. div. 5, § 1809. The evidence proves that the notice referred to was put up about 600 or 700 feet from the west terminus of the proposed road; that copies were also posted at the middle and east end thereof, at Drummond, and on one side of the door of the office of the county clerk of Deer Lodge. The appellant contends that no judgment of conviction can be sustained without proof establishing all the acts enumerated in the statute supra; and that the territory must show that the petition had been presented to the...