The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-09-21
FOR The DEFENDANTS.
Case In Which tho Sapphire Com
panY Was Interested Decided BY
Judge Fsischsr.
Mackey and Widmer not Guilty
OF Wilful Destruction Of
Property.

The D~ihaoulty Originated In : Contest FOR
Possession OF . Placer Claim and the
Use OF water.
Justice Fleiachsr yesterday rendered his
decision in tho case of the state against
VIM. Mackey and Joseph = Widnner, ar
rested on complaint Of Alex McCauley. on
the charge of wilfully destroying property.
The case grew out Of an attempt by the
English company nov operating the sap
phirs fields on the Missouri, to CROSS Wild
mer and Mackey'sland with aames- In his
decision for the defendants the Justice aays:
Defendants in this case are accused to
villfully and maliciously cut, injure and
destroy ten fums boxer, the property Of the
Montana Gold and Gem Exploration com-
pauy, . corporation. A preliminary hear-
Ing having been had whether there il prob
able cause to have defendants answer
therefor at the district court. From the
testimony presented BY the state to this
court. it appears that litigation A. to the
RIGHT Of possession Of = certain placer min
Ing claim or SO called sapphire claim is
pending in the district court now. That
the trouble az to the right OF possession OF
the said claim commenced some time III
MAY last. That at that time Alexander Nc
Caulsy cut off the water supply, which was
derived out Of q certain spring on the
said claim. and BY doing SO pre-
vented defendants from working and
developing said claim. At that time the
.E>-A.~A ~~l McrorIov kha onank nf
abovs named company, had a conversation.
IN which NoCauley said, I'VE will make a
test case out Of this" A certain dam
claimed By defendants was cut. the water
let out and also defendants ditch, leading
the water from said spring, was cut on diff
ferens places. 80 a. to prevent the defend
ants to work the ground and to take gems
or gold out of it. The above named cor
poration kept q man there to watch the
property during the absence Of McCauley.
some time about the I'd or Sd of September
MoCaulsy came back, = fume was built
taking the water from she said spring, and
operations, to work tho ground, and take
ont sapphires, c~ommenced; on September
9, ! few days thereafter. Mackey and Wild
msr, the defendants, at about II O'Clock at
noon came and tore about ten of the 1ume
boxes ont, setting them aside. without cut
ting or destroying them, di%sconnectinR,
however, the hume by tearing out said boxes
In zach 4 way that MoCauley was prevented
from working the ground for the want OF
water.
The gems'and sspphires in the boxes wee
not disturbed, and MeCauley was left in
possession Of them. No enmity as to Mo-
Cauley was shown, only one of the defend
ants told NoCauley that they did not pro-
pose to have ths ground worked out. It
did take McCauley about ten or fifteen
min1te to have the boxes adjusted again;
boxes were not further disturbed, but were
severed from each other, whore they are
Joined, and with q pick torn from their
place; nails that fastened them to a 2x4
piece OF lumber were drawn out; no board
cut, no box destroyed; excepting a few
boards were cracked whom the boxes were
severed from each other.
No ermlty nor bad will existed between
McCaulsy and defendants seems to have
existed. Sec. PIG G. T. Act.
Every person who shall willfully, unlaw-
fully and maliciously destroy. burn, cut or
otherwise 'njure or destroy n goods
chattels or other property OF any descrip-
ton Whatever, the property OF another,
shall upon conviction thereof. be punished
by fine not exceeding $500, or by imprison-
ment in the county Jail not exceeding six
months, OF by both u fine and impris-
onment.
TIT question presents itself to the court,
what is "wlllfully" and what IN malicious
lyY"
TIT word willfully, says Chief Justice
Shaw, in the ordinary sense in which 1t is
used in the statutes, means not merely vol
unfairly, but with a bad purpose; 20 Pick
ering Mass, 900. Story defines malice to be
amy wicked or miscellaneous intention OF the
mind; a depraved inclination to mischief;
intention to do an act which is wrongful
without just cause or excuse; a Wanton dis
regard of the rights and safety OF others.
/ think that when the legislature created
that section PIG the foregoing definition OF
these words was meant, and none other.
Now. was the act of the defendants such al
net as would make willful and malicious
destruction of property of another? Was
the act lone with a bad purpose in view
Was it done with any wicked or miscbiev-
Qua intention Of the mind-with a depravsd
inclination to mischlef-an intention to do
= wrongful act without just cause or OK
cuse? Was it done with a wanton disregard
of the rights and safety of others? 1t does
not appear that defendants was moved BY
motives to do injury to the property
OF another. and with a bad purpose.
If the evidence discloses anything il
brings to light the fact that defendants
they considered an intruder upon theil
rights on that mining ground; whom thej
considered that he ~wrongfully did take
these valuable gems out of said mining
ground. and thereby dep'eciating the value
thereof; their words. testified to by McCau.
Icy. discloses their intention: 1--WE do no
propose to have the valuables taken out OF
that ground"
Therefore. the word wilfully, as defined
above, and as | think is meant by the stat.
ute, does not apply to defendants, bscaus.
10 bad purpose is shown.
The intent with which the act ia done il
material. and if it be shown that the de-
fendant acted in good faith, or under
claim of right. the charge of malicious mis-
chief cannot be sustained (see numerou!
authorities, A. F.. Ency. OF Law. p. Is. f. NJ
nor does it show a malicious dest uctiou O.
property, nor lnisehieyous intention of tn,
mind. nor u deptaved inclination 10 mis
chief or an intention to do wantonly
wrongful act without just cause or excuse
Defendants came there and told McCauley
ths agent of the aforesaid corporation, tia
they did not propose to have their grouus
worked out; that they had paid their none,
for it. and would see to it that neither he
nor the corporation. nor for himself, shoult
not deprive the ground Of it,
valuRblss, and thereby deoreagin,
the value thereof; they die
not drive McCauley from the ground no
offered any violence to him. nor even i'll
will, they did not threaten him in any man
ner, but Widmer. one of the defendants
wen with b pick, severed the f1ume and Sc