it is no defence that the defendant was impelled by other motives than an intention to injure the train.1 Wilfully throwing a stone at a train so as to endanger the safety of passengers is within the statutes,2 as it is unquestionably indictable at common. law. It has been further held that on an indictment for wilfully and maliciously casting anything upon a railway carriage or truck, either with intent to injure it or to endanger the safety of persons in the train, if an intent to endanger the safety of travellers is proved, it is no defence that the train was a goods train, and there was no person on the particular truck. But where the indictment charges maliciously throwing stones into a railway carriage, with intent to endanger the safety of a person in it, it has been ruled that there must be evidence of an intent to do some grievous bodily harm, such as would support an indictment for wounding a particular person with that intent; and, if it appears that the prisoner's intention was only to commit a common assault on some person in the carriage, the case is not sustained.5 It is not necessary, it has been ruled under the statutes, to aver in the indictment that the train belonged to a corporation duly chartered. The statutes, also, have been ruled not to cover neglect on part of drivers and stokers to keep a good lookout for signals, according to the rules and regulations of the railway company, the consequence of which neglect is, that a collision occurs, and the safety of passengers is endangered.7 Obstruct ing engine or railroad carriage indictable. § 1082. Special statutes, also, have been enacted in England, and have been adopted by several of our own legislatures, making indictable the obstruction of engines and railway carriages.8 being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor." (Former provision, 3 & 4 Vict. c. 97, s. 15.) 1 R. v. Holroyd, 2 M. & Rob. 339. stated supra, § 186; but see contra, 5 R. v. Rooke, 1 F. & F. 107. 7 R. 247. v. Pardenton, 6 Cox C. C. 8 The English statute now in force provides that "whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and ma Under the English statute it is held to be a misdemeanor to place a truck across a railway line in such a manner that if a carriage or an engine had come along the line it would have been obstructed, and the safety of passengers, who might have been in any such carriage, would have been endangered; nor is it to this charge a defence that the railway was not opened for passenger traffic, and no carriage or engine was in fact obstructed.1 It is enough to sustain such a case to prove that the act was done by certain persons employed by the defendant to repair a wall between the railway and his premises adjoining; and that on one occasion the defendant himself, who was standing by, nodded his head, and directed the workmen to go on, is sufficient to warrant the justices in convicting the defendant.2 Changing a signal so as to cause a train to go slower than it otherwise would is an obstructing; and so, it is said, is stretching out the arms as a signal. The intent is to be inferred from the facts; and where the evidence was that the prisoners placed a stone upon a line of railway, so as to cause an obstruction to any carriages that liciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure or destroy any engine, tender, carriage, or truck using such railway, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labor, and, if a male under the age of sixteen years, with or without whipping." (Former provision, 3 & 4 Vict. c. 97, s. 15, and 14 & 15 Vict. c. 19, s. 6.) By s. 36, whosoever, by any unlawful act, or by any wilful omission or negleet, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor." 24 & 25 Vict. c. 97, s. 35. (Former provision, 3 & 4 Vict. c. 97, s. 15.) 1 R. v. Bradford, 8 Cox C. C. 309; 6 Jur. N. S. 1102; 2 L. T. N. S. 392; Bell, C. C. 268; 29 L. J. M. C. 171; 8 W. R. 531. 2 Roberts v. Preston, 9 C. B. N. S. 208. 8 R. v. Hadfield, L. R. I. C. C. R. 253. 4 R. v. Hardy, L. R. 1 C. C. R. 278. might be travelling thereon, it was ruled that if this were done mischievously, and with an intention to obstruct the carriages of the company, the jury would be justified in finding that it was done maliciously.1 But the presumption, in such case, is one of fact, not of law.2 1 R. v. Upton, 5 Cox C. C. 298. 66 2 Allison v. State, 42 Ind. 354. In this case Downey, J., said: 'The sixth instruction is as follows: 'It is not necessary that the proof should correspond with the allegation as to the number of pieces of timber placed upon the track. If the proof shows that one piece of timber was placed upon the track of said road, in such a manner as to obstruct the passage of cars over said road, it will be sufficient upon that point.' “There is no valid objection to this instruction. It is not necessary to prove all that is alleged in an indictment, provided that what is proved constitutes a crime punishable by law, of the same nature or quality as that which is charged. It is a crime wilfully and maliciously to place any obstruction upon the track of any railroad, so as to endanger the passage of trains. 2 G. & H. 446, § 29. Placing a single piece of timber upon the track of a railroad would constitute such obstruction, and the fact that the indictment charged that several were placed upon it, and that the State proved that only one was placed upon it, is no variance of proof. "The seventh instruction is as follows: "If the proof shows conclusively that the defendant placed the timbers upon the track of the railroad in question, in such a manner as to obstruct the passage of trains of cars over said road, the rule of law is, that every man intends the necessary consequences of his acts, and the presump tion is, that the act was wilfully and maliciously done.' "This charge may be abbreviated by leaving out the words, the rule of law is, that every man intends the necessary consequences of his acts,' which are not necessary to a proper understanding of it. It will then read as follows: If the proof shows conclusively that the defendant placed the timbers upon the track of the railroad in question, in such a manner as to obstruct the passage of trains of cars over said road, the presumption is that the act was wilfully and maliciously done.' What is a presumption? Starkie says: 'Where the connection between facts is so constant and uniform that from the existence of the one that of the other may be immediately inferred, either with certainty, or with a greater or less degree of probability, the inference is properly termed a presumption, in contradistinction to a conclusion derived from circumstances by the united aid of experience and reason.' 1 Stark. Ev. 80. It is an inference affirmative or disaffirmative of the existence of a disputed fact, drawn by a judicial tribunal, by a process of probable reasoning, from some one or more matters of fact, either admitted in the cause or otherwise satisfactorily established. Best, Presumpt. 12.' Bouv. Dict. vol. 2, p. 367. "Presumptions are either presumptions of law or presumptions of fact. Presumptions of law are either conclusive or they are disputable. They are rules which, in certain cases, either forbid or dispense with any ul § 1082 a. For the protection of manufactures and machinery analogous statutes have been enacted.1 Under these statutes the following points have been ruled : A warp, not sized, but upon its way to the sizers, to fit it for being used in manufacturing goods, is not a “warp in any stage, process, or progress of manufact terior inquiry; inferences or positions established, for the most part, by the common, but occasionally by the statute law, which are obligatory alike on judges and juries. Presumptions of fact, on the contrary, are inferences as to the existence of some fact drawn from the existence of some other fact; inferences which common sense draws from circumstances usually occurring in such cases. These presumptions can only be made by a jury, or by the court when acting as a jury, in the trial of issues of fact. Bouv. Dict. title Presumption. In the charge under consideration, the court told the jury that upon the proof of one fact, that is, the placing of the timbers on the track so as to obstruct the passage of trains, the presumption is, that the act was wilfully and maliciously done. Had the court said, that upon proof that the timbers were wilfully placed on the track, the jury might infer malice, a different question would have been presented. The court did not state to the jury whether the presumption was one of law or of fact; whether it was conclusive or disputable; whether they had anything to decide, with reference to its application, or whether they were compelled to apply it at all events. There are many circumstances under which the defendant might have placed the timbers on the railroad track, so as to obstruct the passage of trains, which would have precluded the idea of its having been done wilfully and maliciously. It seems to us that the court should not So malicious injury to manufact ures, ma terials and machinery. have given this charge in the form in which it was given. We cannot conceive of any state of the evidence which would have justified the giving of it. We suppose it proper for the court to state to the jury a legal presumption for their government; informing them, if it is an indisputable presumption, that they must be governed by it; or if it be a disputable presumption, that it is to stand good until the contrary is established by the evidence, or by a counter presumption. But we cannot think that it is either proper or safe for the court to so far invade the province of the jury as to direct them when they shall make or apply a mere presumption of fact. When the trial of a criminal cause is by jury, the court should not lay down any arbitrary rules as to the weight they are to give to the evidence which has been adduced. They are the judges of the facts, and must be left to weigh the evidence, and consider the motives of the party, without any rules from the court which will compel them to indulge a presumption of fact, whether, under all the circumstances, they think they ought to indulge it or not." 1 "Whosoever, being possessed of any dwelling-house or other building, or part of any dwelling-house or other building, held for any term of years or other less term, or at will, or held over after the termination of any tenancy, shall unlawfully and maliciously pull down or demolish, or begin to pull down or demolish, the same or 17 ure," or prepared for carding or spinning. It is not necessary that goods should be incomplete to be in "a stage, process, or progress of manufacture," under the statute.2 The working tools any part thereof, or shall unlawfully in penal servitude for life, or for any and maliciously pull down or sever term not less than five years (27 & 28 from the freehold any fixture being Vict. c. 47), or to be imprisoned for fixed in or to such dwelling-house or any term not exceeding two years, building, or part of such dwelling- with or without hard labor, and with house or building, shall be guilty of a or without solitary confinement, and, misdemeanor." 24 & 25 Vict. c. 97, if a male under the age of sixteen 8. 13. years, with or without whipping." 24 & 25 Vict. c. 97, s. 14. That the offence may be punished in this country at common law see supra, § 1076. "Whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any goods or article of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or any framework-knitted piece, stocking, hose, or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or progress of manufacture, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any warp or shute of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or render useless, any loom, frame, machine, engine, rack, tackle, tool, or implement, whether fixed or movable, prepared for or employed in carding, spinning, throwing, weaving, fulling, shearing, or otherwise manufacturing or preparing any such goods or articles, or shall by force enter into any house, shop, building, or place, with intent to commit any of the offences in this section mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept "Whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any machine or engine, whether fixed or movable, used or intended to be used for sowing, reaping, mowing, threshing, ploughing, or draining, or for performing any other agricultural operation, or any machine or engine, or any tool or implement, whether fixed or movable, prepared for or employed in any manufacture whatsoever (except the manufacture of silk, woollen, linen, cotton, hair, mohair, or alpaca goods, or goods of any one or more of those materials mixed with each other or mixed with any other material, or any frameworkknitted piece, stocking, hose, or lace), shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than five years (27 & 28 Vict. c. 47), or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping." 24 & 25 Vict. c. 97, s. 15. 1 R. v. Clegg, 3 Cox C. C. 295. 2 R. v. Woodhead, 1 M. & Rob. 549. |