FROM ROCKINGHAM CIRCUIT COURT. The indictment clearly charges the statutory offence, which is, wilfully and maliciously placing obstructions on the railroad track whereby life may be endangered. It charges a single act, i. e., the placing upon the track two sleepers and a post. That is the charge. It is alleged to have been done wilfully and maliciously, and that life was endangered.
The evidence, as reported, tended clearly to show all the material facts, and also that the placing the obstructions was one continuous act. That continuous act is so described that it would be impossible so to vary the form of the indictment for the same offence as to prevent the respondent, if he had been acquitted upon this indictment, from availing himself of an acquittal of this indictment as a defence.
The indictment clearly charged the statutory offence, charged it as one offence, and, by the allegation that it was done wilfully and maliciously, precluded all the suppositions of innocence suggested in the argument; and the evidence clearly tended to prove the indictment as laid.
It is said now, by way of defence, that it is admitted by the prosecution that the respondent did not intend to endanger life, but only to annoy certain persons who were unlawfully using the road. The case also finds that life was endangered, and the jury have found that the act was wilful and malicious. *Page 180
In fact, it seems certain that what the respondent did actually intend to do must have endangered the lives of those who were using the hand-car as much as it actually endangered those who were on the train. To the uninstructed eye, it seems as if the danger to persons on a hand-car, going at its full speed, would be fully as great as the danger to persons on a freight train at the ordinary speed of a freight train.
The act, as described by the evidence and admitted by the respondent's counsel, contains all the elements of wilfulness and malice, without resorting to the legal presumption that a man intends the natural consequences of his acts.
I think, therefore, that the objections cannot prevail, and that the conviction must stand.