
    James McCarty v. The State of Mississippi.
    1. CRIMINAL LAW: RAILROAD LAW: REPEAL 01? PRIOR STATUTES BY RET. CODE.So much of the charter of the Mississippi Central Railroad Company, as makes provision for the punishment of persons placing obstructions on the track of the road, is a public law of the State; and being in relation to a subject which is made a matter of special provison by Arts. 163 & 164, p. 600 of the Rev. Code, is superseded and repealed. See Arts. 2 & 3, Rev. Code, 43.
    2. Same: same: indictment under art. 164, P. 600 op rev. code. — An indictment which charges, that the accused “wilfully and maliciously did place an obstruction on,” a certain named “ railroad, which obstruction was of such a nature as to endanger the lives of persons being carried on said road,” is sufficient'under Art. 164, p. 600 of Rev. Code,
    3. Same : time laid is indictment, when necessary to be proved. — The day on which an offence is charged to have been committed is immaterial, except in those eases where time is of the essence of the offence, or a necessary ingredient in its description ; and hence, in a case not within the above exception, proof that the offence was committed either before or after the day laid in the indictment, but before the indictment was found, and within the period prescribed by the Statute of Limitations, is sufficient.
    4. Evidence: circumstantial. — A case of circumstantial evidence considered, and the proof declared to he sufficient to warrant a verdict of conviction.
    ERROR.to the Circuit Court of La Fayette county. E. Cushman, judge. Hon. John
    The nature of the indictment is sufficiently set out-in the opinion of the court.
    The plaintiff in error moved the court to quash the first count in the indictment, because the clause in the charter of the Mississippi Central Railroad Company, upon which it was based, was not in force, but had been superseded and repealed; and the court overruled the motion, and the plaintiff in error excepted.
    The plaintiff in error was then arraigned, and pleaded not guilty. The State proved, by Mr. Smith, that he went from -Abbeville to Mount Yernon church, a distance of one mile, on a handcar; got there at 8 o'clock p. M. of the Tth September, 48*58. Stood oy with a lantern, and saw two negroes, whom he had brought with him, remove the handcar thirty-one feet from the road. Had the handcar well scotched with three blocks, and so situated, that if the blocks had been removed, the handcar would have run into a ditch, and could not have run across a bridge on -to the road; that this was in La Fayette county, Mississippi. Smith then went to the church, and saw McCarty, and asked him for a cigar, which McCarty gave him; that McCarty then asked him if he could get to ride back to Abbeville with him on the handcar, and he replied that he had quit carrying such stock last week; and that he, witness, then went to the spring, and as he turned off, McCarty muttered something that he did not distinctly hear; that he remained at the spring some twenty minutes, returned, went into the church; that McCarty came into the church, and remained some fifteen minutes, and went out; that in returning from church, after the collision, McCarty said he had told Morgan Williams he expected there would be a collision; that the church is one hundred and eighty yards from the railroad; that the moon did not rise until after the collision ; that there was a protracted meeting going on at the church; that he, witness, had gone to the church six or seven nights in succession, in the handcar, and had put it in the same place, and scotched it in the same way, and that McCarty had not been at church before that night; that he, witness, was in the employ of the railroad company, as overseer of the section hands, and had the use of the handcar to go up and down the road; left the negroes at the church when he went to the spring; knows little of the whereabouts of the negroes while at church. It would have required three stout men to place the car-wheels on the track; but one man could run the car across the bridge on the track.
    The State proved by Miller, that Smith and McCarty came into store, where he was clerk, next morning after collision; that after Smith left, McCarty said he knew who Smith suspected: that he suspected Couch and Vaughan; that he, McCarty, saw Couch and Vaughan coming from direction, of railroad a short time before collision.
    The State proved by Dogan, that he came with Smith to the church in the handcar; had come six nights with him in succession; that three negroes came with them; that the car was removed thirty-five feet from the railroad, and well scotched; that McCarty told him that night, after the collision, that he knew the handcar was on the track; that he made no reply to that remark of Me-Oarty’s. Dogan was then asked, by prisoner’s counsel, why he did not make some reply, as he knew the handcar had been removed by himself and Smith, and the negroes ? Dogan then said, he did say to McCarty, that if the car was on the road, somebody put it there. Dogan was then asked, “if he did not say before the committing court, that McCarty said he told Morgan Williams that he expected the handcar was on the road, and that if Smith did not take it away it would be smashed up ?” and he answered, “Yes.” lie was then asked, “ Is that what you say now ?” and he answered, “ Yes.”
    The State then proved by Owens, that he saw McCarty start off from the church in the direction where the collision took place on the railroad; he was gone off half an hour, but witness was in the church and did not see him proceed beyond the corner of the church, and does not know what direction he went from the corner of the church.
    The State then proved by Farr, that he saw McCarty pass the first window, passing rather in direction of the railroad, but did not see him after he passed the second window, and shortly after saw him returning; that others were passing about, and in the .direction of the railroad. Witness was one of the mob who attempted to drive McCarty from Abbeville.
    The State then proved, by R. Owen, that he and accused were sitting together, when they heard the collision take place, and McCarty remarked to him, that he expected the handcar was smashed up; that this remark was in reply to a remark which he, witness, made, that he expected they had run over a horse or a cow.
    The State then proved, by Meadows, that he saw McCarty going off in direction of railroad; saw him going in that direction as far as fifty yards; was gone fifteen minutes; and when he returned, heard him say to two or three persons that the handcar was on the road; that the said remark of McCarty’s made no impression upon him; that he'did not believe McCarty.
    The State then proved, by Robinson, that the railroad was obstructed, and that the obstruction was such as to endanger life or limb.
    The State then proved, by Long, that Yaughan was in the church the whole evening, and did not go in the direction of the railroad.
    
      The State then proved, by Couch, that he was one of twenty citizens that had determined to drive-McCarty from. Abbeville; that McCarty left the neighborhood, and did not return until the night of the collision; that he and Vaughan did not go in direction of railroad.
    It was admitted that the Mississippi Central Railroad Company was chartered, and running its cars, &c.
    After the testimony was closed, the accused moved to exclude the testimony, because all that was proved occurred on the 7th of September, 1858, after the time laid in the indictment; but the ■ court refused to exclude the testimony, and the accused excepted.
    The jury found the accused guilty on the first and second counts in the indictment, and not guilty on the third count of the indictment.
    The accused moved for a new trial, and the motion was overruled, and he was sentenced to five years’ imprisonment in the penitentiary; and thereupon sued out this writ of error.
    
      H. A. Barr, for plaintiff in error.
    1st. The court erred in refusing to quash the first count in the indictment. The first count is based upon the nineteenth section of the charter of the Holly Springs Railroad Company, which is incorporated in, and made a part of, the charter of the Mississippi Central Railroad Company. See charter of Miss. C. R. Co., p. 6, § 19, especially latter clause of the section. Nothing can be clearer than that this section is repealed. The act providing for the publication of the “ Revised Code,” and for the repeal of the acts therein revised, declares that from and after the 1st day of November, 1857, all acts and parts of acts, the subjects whereof are revised or consolidated and re,enacted in this revised code, or repugnant to the provisions contained therein, shall be, and the same are hereby repealed. Code, p. 43.
    The nineteenth section of the charter prescribes the punishment, and the manner of punishing any person who shall wilfully injure, impair, or destroy, any part of the railroad, or any of the works, buildings, engines, &c., or who shall lay any obstruction on or across said railroad. See. Charter, §19.
    The Revised Code also provides for the punishment of, and the manner of punishing any person, who shall wantonly or negligently obstruct or injure.any railroad, or who shall wantonly or maliciously injure, or place any impediment or obstruction, on.any railroad in this State, &c. See Revised Code, p. 600, Art. 163,'and Art. 16R
    The offence alleged in each count of the indictment in this case is, obstructing the railroad. So far. as obstructing. is concerned, the subject of the nineteenth section of the charter is not only revised in the 163d and 164th articles of the Revised'Code, but it is consolidated and re-enacted.
    The plaintiff in error did not apply for a supersedeas. Hence, he was sent to the penitentiary, and has already been confined there for. twelve months. If he was rightfully convicted under the second count in the indictment, he has already suffered all the imprisonment the State can legally impose upon him.
    2d. The testimony ought to have been excluded. Any day anterior, but not subsequent, to the day alleged in the indictment might have been shown. ‘ Olivers. The State, 5 How. Rep. 14; JR. v. Ohamoek, Holt, 301; 1 Salk. 288; 9 St. Tr. 58-605,' 542-552; Fost. 7, 8 ; 9 East. 157 ; 1 Phil. Ev. 203 ; B. v. Levy, 2 Stark. N. T. 458.
    3d. The evidence was circumstantial. The.rule is, that the proof ought to be, not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion. 1 Greenleaf Ev. § 34.
    The farthest' that the testimony goes, is to show that McCarty was aware of the fact that the handcar was on the road. He was seen going in the direction of .the railroad;- was gone fifteen minutes, and on his'return, said to two or three persons: “ The handcar is on the railroad.” After the collision, he frequently mentioned the fact that he had spoken of the handcar being on-the road. This is the material part of the testimony against him. It is consistent with his innocence. It can scarcely be said to be consistent with his guilt. It is not inconsistent with every rational conclusion other than the one that he is guilty. He doubtless tvalked to the railroad, or near to it, and saw the handcar on the road. According to the testimony of Smith, he could not alone have removed it from the road; and besides, he probably felt.that it was not his business to move it, or that it would not be proper in him to interfere with it. He, therefore, returned to the church, and informed two or three persons of the fact that the handcar was on the road. The cars were then whistling at Abbeville, a distance of one mile from the church, and it was too late then to have gone to the road and moved it, in time to prevent the collision.
    Couch was a member of the Abbeville mob, between which and McCarty there was hostility. It is probable that Yaughan belonged to the same mob. The fact that McCarty seemed disposed to cast suspicion upon them, may be evidence of malice towards them; it is not evidence of his own guilt; it is not inconsistent with his innocence ; it is not inconsistent with every rational conclusion other than the one that he is guilty.
    But for the fact that McCarty had become obnoxious to the Abbeville mob, he would doubtless have escaped suspicion. The spirit of the mob is manifest in most of the testimony. Dogan attempted to amend his testimony on the trial in the Circuit Court, and make it stronger than it was before the committing court. Smith would make the impression that he had just given offence to McCarty, by refusing to let him ride home with him on the handcar, and thereby show a motive on the part of McCarty for the act. The manner in which he approached McCarty at the church door, asking him for a cigar and receiving it, precludes the idea that any offence was intended or taken; for it is hardly to be presumed, that Smith meant to receive courtesy and return rudeness. The remark, that he had quit carrying such stock, was manifestly intended and understood at the time to be a mere jest. They walked home from church together. Smith did not seem to have quit walking with “ such stock.” But why would McCarty have sought to injure the railroad company and its passengers, because of an offence given him by Smith? A motive to injure Smith, could not have constituted a motive to injure the railroad company and its passengers.
    But motive is of no consequence, in the absence of sufficient proof of the act.
    
      T. J. Wharton, attorney-general, for the State.
    Three errors are assigned by plaintiff in error.
    1st. The refusal of the court below to quash the first count of the indictment.
    
      2d. The refusal to exclude the evidence offered by the State.
    3d. Refusal to set aside the verdict.
    The first alleged error is founded upon the assumption that clause of the Central Railroad charter (19th section), upon •which said first count is supposed to be framed, is repealed by articles 163, 164, page 600 of new Code. The foundation for the argument in favor of that view, is drawn from the language of the act providing for the publication of the new Code, — see page 43, art. 3,— which declares “ that from and after the 1st day of November, 1857, all acts and parts of acts, the subjects whereof are revised or consolidated and re-enacted in this revised code, or repugnant to the provisions contained therein, shall be, and the same are hereby, repealed, subject however, to any express regulations relating thereto, which may be contained in this Code.”
    The second section of the Code, supposed to repeal that provision of the charter, provides, 1st, “ That if any person shall wantqnly or negligently obstruct, or injure, any railroad, or plank road in this State, or any covered road, on conviction thereof, he shall be punished2d, “ If any person shall wantonly or maliciously injure, or place any impediment or obstruction on any railroad in this State, or do any other act, by means of which any car or vehicle shall diverge, or be thrown from the track thereof, such person, on conviction thereof, shall be imprisoned,” &c.
    The said first clause charges: “ That the defendant did wilfully and maliciously place an obstruction on said railroad, which obstruction was then and there of such a nature, as to endanger the lives of persons being carried on and upon the said railroad,” &c.
    The clauses of the Code, the section of the charter, and the count in the indictment being thus brought in juxtaposition, it will at once be seen how utterly without foundation is the argument in support of the motion to quash.
    The article immediately preceding the one relied upon to established the proposition, that the section of the charter of the railroad is repealed, would negative such a supposition. See Code, 43, art. 2, which, after enumerating certain acts which should take effect on the 1st November, 1857, says: “ And from that day, this Code shall be received in use, and shall supersede all prior statutory acts and clauses therein revised and hereby repealed.”
    
      It was never designed to repeal the said nineteenth section of said charter. It has not been repealed expressly, or by implication. There is no sort of inconsistency between the two articles quoted, 163, 164 of Code, page 600, and that section. Those articles only provide for and punish injuries to the railroads; and do not embrace injuries to passengers on the cars, caused by obstructions placed upon the track. That is the specific offence provided for and punished by that section of the charter. The offences are distinct. The authors of the Code only intended to provide for a case not embraced in the charter, and leave that in full force as to all offences embraced in it.
    Where statutes in pari natura are not repugnant in terms, they will be construed in connection and in aid of each. There must he some repugnancy in terms or in substance to defeat either. The mere fact that that section of the charter is not incorporated in terms into the Code, does not operate a repeal of the section.
    But there is no possible construction which can be given to the language of the article of the Code which is supposed to repeal that section of the charter which will have that effect.
    Its plain and obvious meaning is just what its own words state : “ That all acts, the subjects of which are revised, or consolidated and re-enacted in this Revised Code, or repugnant to the provisions contained therein, shall he, and the same are hereby repealed,” &e. As already insisted, there is nothing in the two articles of the Code in relation to obstructions to.railroads, which are repugnant to the section of said charter; but the particular “.subject” of that section of the charter, is not “ revised or consolidated and re-enacted in this Revised Code.” The subject of that section of the charter, is the punishment of all injuries done to passengers on the cars by obstructions to the track; whilst the subject of the two articles of the Code, supposed to operate a repeal, is the punishment of all injuries done to railroad tracks by obstructions placed upon them.
    The point- is too clear for elaboration, by all the rules which govern in the construction of statutes, as well as by the plain words of the alleged repealing act. Statutes are not considered to be repealed by implication, unless the repugnancy between the new provision and a former statute, be plain and unavoidable. 1 Kent’s Com. 517, note b (8th ed.)
    
      2. It is next insisted that the court erred in refusing to exclude the evidence adduced by the State. This is predicated on the ground that the indictment alleged the offence to have been committed on the first day of June, 1858, and it is assumed that the proof fixes the time of the collision as on the 7th day of September, 1858, nearly three months afterwards.
    This is immaterial. Time is not of the essence of the offence.
    The Code, 616, art. 266, provides, “ that no indictment for any offence shall be holden insufficient, for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened,” &c.
    As to the objection that the verdict is contrary to the evidence, I have only to say that, it being a case dependent upon circumstantial evidence, and fully and fairly submitted to the jury, and no rule of law being violated by the court in its instructions, in the language of this court in Qieily’s ease, 18 S. & M. 202, “ the verdict will not be disturbed, unless opposed by a decided preponderance of the evidence, or based upon no evidence.”
    I make this general remark, that not only was all the evidence adduced by the State, but it is impossible to reconcile the conduct and declarations of the accused with any other hypothesis than that of his guilt.
   Handy, J.,

delivered the opinion of the court.

This was a prosecution against the plaintiff in error, for placing obstructions on the Mississippi Central Railroad.

The indictment contained three counts; the first charging, that the defendant “wilfully and maliciously did place an obstruction on said railroad, which obstruction was then. and there of such a nature as to endanger the lives of persons being carried on and upon the said railroad, contrary to the form of the statute,”, &c.; the second charging, that the defendant “.did wantonly, obstruct the Mississippi Central Railroad;” the third charging,'that the defendant “ did maliciously and wilfully place an obstruction on said railroad, by means of which said obstruction so placed on the said railroad, a locomotive, being then and there a vehicle of said Mississippi Central Railroad Company, then and there running on said railroad, did diverge from the track thereof, against the form of the statute,” &c.

The defendant moved the court to quash the first count, because the clause in the charter of the Mississippi Central Railroad Company, upon which it is based, was not in force. But the court overruled the motion, and this is the first error assigned.

We are of opinion that the clause of the charter of the railroad referred to, was repealed and superseded by article 164, page 600, of the Revised Code. In declaring the effect and operation to be given to the provisions of the Revised Code, it is provided that the acts enacted by that code, with certain exceptions, should “ supersede all prior statutory acts and clauses therein revised and thereby repealed,” and that “ all acts and parts of acts, the subjects whereof are revised, or consolidated and re-enacted in this Revised Code, or repugnant to the provisions therein contained, shall be and the same are hereby repealed, subject however, to any express regulations relating thereto, which may be contained in this code.” Rev. Code, 43, arts. 2 and 3. It is manifest from these provisions, that it was the intention of the legislature to reduce into one, all the statutory enactments in relation to any particular subject-matter, wherever the same was made a matter of special provision in the Code; to establish a uniform rule upon the subject, and to repeal or modify all prior acts containing different provisions, and coming plainly within the scope of the rules declared by the Code.

The subject-matter of providing for the offence of placing obstructions on the Mississippi Central Railroad, endangering life or limb, was embraced in the law of the State, as enacted by the charter of that company. That act was, in that respect, a public law of the State, for the punishment of a crime; and when the act of the Revised Code, 600, art. 164, was passed, it was a revision of the law upon the same subject, and the re-enactment of a general and uniform rule, in relation to it, which, under the provisions of articles 2 and 3, superseded and repealed prior enactments, containing different provisions, including that contained in the charter of this railroad company.

But, notwithstanding this, we think that the court acted properly in refusing to quash the first count in the indictment; because we are of the opinion that that court is sufficient, under art. 164 of the Code. It is thereby enacted, first, that if any person shall wantonly or maliciously injure, or place any impediment or obstruction on, any railroad in this Stateor, secondly, “ do any other act, by means of which any car or vehicle shall diverge or be thrown from the track thereof,” such person shall be imprisoned in the penitentiary, not longer than ten years.” The first count in this indictment, charges that the defendant “ wilfully and maliciously did place an obstruction on said railroadand adds, “ which obstruction was of such a nature as to endanger the lives of persons being carried on said railroad.” This addition, it is true, appears to have been made with reference to the terms employed in the charter of the railroad company, defining one class of obstructions placed upon the road, the punishment of which was thereby provided for. But the constituents of the offence, as declared by the act in the Revised Code, above referred to, are fully stated in the count, independently of this addition; and no additional force is given to the charge stated in the count, when tested by the article of the Code, by the superadded words, stating that the nature of the obstruction was such as to endanger the lives of passengers. For not only are the essential words of the statute used in the count, but they appear, from the nature of the thing, to impart what is stated in the superadded words relative to the nature of the obstruction. A wilful and malicious obstruction placed on a railroad, must in its very nature endanger the lives of passengers in the cars on the road; and it was doubtless for this reason, that words in the act of the Revised Code, descriptive of the nature and effect of such obstruction, were omitted as useless and superfluous.

We are, therefore, of opinion, that the words in this count, descriptive of the nature and effect of the obstruction, are surplus-age, and might be stricken out without impairing its legal force; and that the count is good under the provisions of the Revised Code.

The next assignment of error is, that the court overruled the motion of the defendant to exclude all the evidence offered in behalf of the State.

The ground of this motion was, that the indictment charged that the offence was committed on the first day of June, 1858, and all the evidence showed that it was committed on the 7th September, 1858, and that the evidence was inadmissible to prove that the offence was committed after the time laid in the indictment. But there is no legal force in this position. The indictment was found at October term, 1858, and time was not of the essence of the offence. It is admitted by the counsel for the plaintiff in error, that it would have been competent to prove the commission of the offence at any time anterior to the date laid in the indictment. But upon the samé principle by which that would be competent, it may be proved that the offence was committed after the date laid, but before the finding of the bill; for the reason is, that time is not of the essence of the offence, and it is applicable to any time before the finding of the bill, or which would show that the offence was not barred by the Statute of Limitations, except where time is of the essence of the offence. Miller v. The State, 88 Miss. 356.

The last error assigned is, that the motion for a new trial should have been sustained, on the ground that the verdict was against the evidence. Without a particular statement of the evidence, we deem it sufficient to say, that we consider it ample to warrant the verdict of the defendant’s guilt.

Let the judgment be affirmed.  