
    McCarty v. State,
    37 Miss. Rep., 411.
    Placing Obstructions on Railroads.
    All laws and parts of laws enacted prior to the adoption of the Revised Code of 1857, and in conflict therewith, were, by articles 2 and 3, page 43, of the Code, repealed. Therefore, so much of the charter of the Mississippi Central Railroad Company as makes provisions for the punishment of persons placing obstructions on the track of the road, being a public law, and a matter of special provision in articles 163 and 164, p. 600, of the Revised Code, is superseded and repealed.
    An indictment that charges the accused with “wilfully and maliciously placing an obstruction on ” a certain railroad named, “ which obstruction was of such a nature to endanger the lives of persons being carried on said road,” is sufficient under the Rev. Code, p. 600, art. 164.
    The day on which an offense is charged to have been committed is immaterial, except in those cases where time is of the essence of the offense, or a necessary ingredient in' its description; and hence in a case not within the above exception, proof that the offense 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.
    Error to LaFayette circuit court. Cushman, J.
    The nature of the indictment is fully 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in the charter of the Mississippi Central Railroad Company, upon which it was based, was not iu force, but had been superseded and repealed; and the court overruled the motion, and the plaintiff in error excepted.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 hand-car, and got there at 8 o’clock p. m. of the 17th of September, 1858. He stood by. with a lantern, and saw two negroes, whom he had brought with him, remove the hand-car thirty-one feet from the road. He had the hand-car 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. This was in La Fayette county, Mississippi. Smith then went to church, and saw McCarty, and asked him for a segar, which McCarty gave him. McCarty then asked him if he could ride back to Abbeville with him on the hand-car, and he replied that he had • quit carrying such stock last week; and that he, witness, then went to a spring, and as he turned off, McCarty muttered something that he did not distinctly hear. "Witness remained at the spring some twenty minutes, and returned and went into church; McCarty came into church, and remained some fifteen or twenty minutes, and went out. In returning from church, after the collision, McCarty said he had told Morgan Williams he expected there would be a collision. The church is one hundred and eighty yards from the railroad. The moon did not rise until after the collision; there was a protracted meeting going on at the church. Witness had gone to the church six or seven nights in succession, in the hand-car, 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. Witness was in the employment of the railroad company, as overseer of the section hands, and had the use of the liand-car to go up and down the road. He left the negroes at the church when he went to the spring; knew very little of the whereabouts of the negroes while at' church. It would have required three stout men to have placed the car-wheels on the track, but one man could run the car across the bridge on the track.
    Miller testified that Smith and McCarty came into the store where he was clerk, next morning after the collision; that after Smith had left, McCarty said he knew who Smith suspected; that he suspected Couch and Yaughan; that he, McCarty, saw Couch and Yaughan coming from the direction of the railroad a short time before the killing.
    Dogan, for the state, testified that he came with Smith to church in the hand-car; had come six nights in succession with him; that three negroes came with them; that the car was removed thirty-five feet from the railroad, and well scotched. McCarty told witness that night, after the collision, that he knew the hand-car was on the track; that he made no reply to that remark of McCarty’s. Dogan was then asked by prisoner’s counsel why he did not make some reply, as he knew the hand-car had been removed ? 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 hand-car was on the road, and if Smith did not take it away, it would be smashed up ? ” and he answered, “ Yes.” He was then asked, “ Is that what you say now? ” and he answered, “ Yes.”
    Owens, for the state, testified that he saw McCarty start off in the direction where the collision took place on the railroad; he was gone about half an hour; but witness was in church, and did not see him proceed beyond the corner of the church, and does not know what direction he then took.
    Farr, for the state, testified that he saw McCarty pass the first window, passing rather in the direction of the railroad, but did not see him after he passed the second window; and shortly afterwards saw him returning; that others were passing about, and in the direction of the railroad. Witness was one of a mob who attempted to drive McCarty from Abbeville.
    H. Owen, for the state, testified that he and McCarty were sitting together when they heard the collision take place, and McCarty remarked to him, that he expected the hand-car 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.
    Meadows, for the state, testified that he saw McCarty going off in the direction of the railroad; he saw him going in that direction for about fifty yards; he was gone about fifteen minutes; and when he returned, heard him say to two or three persons that the hand-car was on the road; that this remark of McCarty’s made no impression upon him; he did not believe McCarty.
    The state then proved by Robinson that the railroad was obstructed, and the obstruction was such as to endanger life 'or limb.
    Long, for the state, proved that Yaughan was in church the whole evening, and did not go in the direction of the railroad.
    The state proved by Couch that he was one of twenty citizens who determined to drive McCarty from Abbeville; that McCarty left the neighborhood, and did not return until the night of the collision; that he and Yaughan did not go in the direction of the railroad.
    It was admitted that the Mississippi Central Railroad Company was chartered, and was 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, after the time laid in the indictment; but the jury refused to exclude the testimony, and the prisoner 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 prisoner then moved for a new trial, and the motion was overruled, whereupon he excepted, and sued out this writ of error.
    
      H. A. Barr, for plaintiff in error.
    I. The first count of the indictment should have been quashed, because it is based on the 19th section of the charter of the Holly Springs Railroad Company, which is incorporated into and made a part of the charter of the Mississippi Central Railroad Company, and which has been superseded and repealed by article 164, page 600, of the Rev. Code of 1857.
    The Code of 1857, arts. 2, 3, page 43, provides “ that all acts and parts of acts, the subjects whereof are revised or consolidated and re-enacted in this revised code, or repugnant to provisions therein, shall be, and the same are hereby, repealed.”
    
      The plaintiff in error did not apply for a supersedeas. Hence he was sent to the penitentiary, and has been confined there for three months. If he was rightfully convicted under the second count in the indictment, he has already suffered all the imprisonment that the state can legally impose on him.
    2. The testimony should have been excluded. Any day anterior, but not subsequent, to the day alleged in the indictment, might have been shown. Oliver v. State, 5 How., 14; Hex v. Charnox, Holt, 301; 1 Salk., 288; 9 St. Tr., 58-605, 542-552; Foster, 7, 8; 9 East, 157; 1 Phill. Ev., 203; Hex v. Levy, 2 Stark. N. T., 458.
    3. The evidence was only 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.
    
      T. J. Wharton, attorney general.
    1. The action of the court in sustaining the first count of the indictment was correct. The section of the statute under which it was framed is not repealed by the Bevised Code, 600, art. 164. The act and this provision of the code are exactly alike, and the former is not repealed only by implication ; and that cannot be, because statutes are not considered repealed by implication, unless the repugnancy between the new provision and a former statute be plain and unavoidable. 1 Kent’s Com., 517, note 1) (8th ed.).
    2. The second ground of error is untenable. The offense with which the prisoner is charged, is not one of which time is the essence, therefore a variance in the time of the commission of the offense as laid in the indictment, and as proved, is immaterial. The Bev. Code, 616, art. 266, provides, “ that no indictment for any offense shall be holden insufficient, for omitting to state the time at which the offense was committed, in any case where time is of the essence of the offense; nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or a day that never happened,” &c.
    
      3. The verdict will not be disturbed unless opposed by a preponderance of tbe evidence, or based upon no evidence. Cieeley’s case, 13 S. & M., 202.
   Handy, J.:

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

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

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

We are of opinion, that tbe clause of tbe charter of tbe railroad referred to, was repealed and superseded by article 164, page 600, of tbe Revised Code. In declaring tbe «Sect and operation to be given to tbe provisions of the Revised Code, it is provided, that tbe 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, tbe subjects whereof are revised, or consolidated and re-enacted in this Revised Code, or repugnant to tbe provisions therein contained, shall be and tbe 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 offense 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 crime; and when the act of the Revised Code, 600, art. 16f, was passed, it was a revision of the law upon the same subject, and the reenactment 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. 16f of the Code. It is thereby enacted: first, “ that if any person shall wantonly or maliciously injure or place any implement or obstruction on any railroad in this state,” or, 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 railroad;” and 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 offense, as declared by the act in the Revised Code, above referred to, are fully stated in the court, independently of this addition, and no additional force is given to tbe charge stated in tbe count,, when tested by tbe article of tbe Code, by tbe superadded words, stating that tbe nature of tbe obstruction was such as to endanger tbe lives of passengers. For not only are the essential words of tbe statute used in tbe count, but they appear, from tbe nature of tbe thing, to impart what is stated in tbe super-added words relative to tbe nature of tbe obstruction. A. wilful and malicious obstruction placed on a railroad, must in its very nature endanger tbe lives of passengers in tbe cars on tbe road; and it was doubtless for this reason, that words in tbe act of tbe Revised Code, descriptive of tbe nature and effect of such obstruction, were omitted as useless and superfluous. -

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

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

Tbe ground of this motion was that tbe indictment charged that tbe offense was committed on tbe first day of June, 1858, and all tbe evidence showed that it was committed on tbe 7th September, 1858, and that tbe evidence was inadmissible to prove that tbe offense was commited after tbe time laid in tbe indictment. But there is no legal force in this position. Tbe indictment was found at October term, 1858, and time was not of the essence of tbe offense. It is admitted by tbe counsel for tbe plaintiff in error that it would have been competent to prove tbe commission of tbe offense at any time anterior to tbe date laid in tbe indictment. But upon tbe same principle by which that would be competent, it may be proved that tbe offense was committed after tbe date laid, but before tbe finding of the bill,; for tbe reason is, that time is not of tbe essence of tbe offense, and it is applicable to any time before tbe finding of tbe bill, or which would show that tbe offense was not barred by tbe statute of limitations, except where time is of tbe essence of tbe offense. Miller v. The State, 33 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.  