Evening journal., 1908-11-27


case. there are several elementary
rules which you should keep in mind.
In all criminal cases the law pre-
sumes that the accused is innocent
until 1t is proved to the satisfaction
OF the Jury beyond a reasonable doubt
that he Is guilty. In civil cases n
preponderance or greater weight of ;hD
evidence is sufficient to warrant YER
dict. but this is not so in criminal cases
You are the sole Judges as TO the
credit and weight OF the evidence.
Where the evidence is conflicting you
should reconcile Il n YOU can. and il
you cannot do so. you should accept
as true that part OF Il which you deem
worthy OF credit, and reject that part
which you deem unworthy Of credit
keeping in view the interest or bias.
Cf the witness or their free
dom from interest or bias
and all the circumstances which tend
to aid you In determining the truth or
falsity of the testimony.
This indictment is for the common
law offense of malicious mischief
which. in the case Of State VS.. Haml-
ton. found I'm Houston's Criminal Re"
ports. page 2S5. tried in this county
about forty years ago, was defined TO
be "any malicious or mischievous in
jury. either to the rights Of another,
or TO those Of the public i'm general"
Malice. either express or I'M e
piled. Is reaui. to sustain the indic.-
ment."
We have been requested TO charge
you as to the nature and effect or
direct circumstantial evidence. In the
recent case Of State VS.. Collins Go PEN
newin. 27O). the Chief Justice, in his
charge TO the Jury made the following
appropriate statementof the law on this
subject;
"The universal experience OF those
engaged In the administration Of Justice
shows the absolute necessity Of ad-
hitting and relying upon circumstan-
tial evidence. IN forming our con.
clusions in regard to the guilt or in
nocence of accused persons; and when
clearly convincing and conclusive. Is Of
equal weight with direct evidence. In
deed it is often the only means of M
covering and proving crimes which are
committed i'm secret and which arc con.
cealed by the cunning artificcs Of tho
perpetrator. But while this IS so, We
say to you most emphatically that cir
cumstantlal evidence. TO warrant con-
vicnon. must be entirely satisfactory.
and Of such significance. consistency and
force. as to produce conviction In the
minds of the jury, of the guilt of the
accused beyond a reasonable doubt. The
great rule on this subject is this: That
when the evidence is circumstantial the
| jury must be fully satisfied not only
that the circumstances are consistent
/ with the guilt Of the prisoner. but thcS
| must also be satisfied. that the facts are
| such as TO be consistent with any
other reasonable conclusion than that
the prisoner was the guilty party"
"This is the rule relating 20 circum-
stantial evidence. as distinguished from
idrect evidence. The state claims TO
have produced IN this case both direct
and circumstantial evidence.
"But whether the evidence be direct
or circumstantial. or both. ii must in
every case be Of such a character as t.
satisfy the minds of the Jury Of tn-
guilt of the prisoner beyond a reason-
able doubt"
The evidence before you Of the con-
duct of the defendants as to this tele-
graph line. and as to the servants and
agents of company Owningand operating
the same. both before and after the
cutting of the holes mentioned in The
Indictment NAV and should be consid-
cred bv vau. In connection with the
other evidence before you, in the de-.
termination Of the question whether
the defendants. or either Of them. cut
the poles. etc. as charges. and also in
the determination Of question whether
such cutting. etc. If done by the de-
PENDANTS. or either Of them, was done
maliciously as charged.
We cannot charge YOU. as requested,
as 10 the weight or effect Of such evl,
dence. as this is a matter solely for
your consideration.
We decline TO charge YOU, as request
ed. that If YOU believe from the evil
dence that the poles were sawed down
by the defendants. they cannot be con-
victed under the charge in the tn
dictment. We say to you that proof to
your satisfaction OF the saving down
Of the poles by the defendants would
sustain the charges Of the indictment.
The following statute Of this state
provides a verv summary and drastic
remedy in cases Of trespass upon the
propertv Of another. CRevised Code,
page 929. Section 2D:
IF any person shall wilfully enter
into. upon. or trespass upon the way
lands or premises Of another in this
State. ne shall be guilty OF a nuisance.
ANY constable or other conservator Of
the peace. the owner or occupier Of
such ways. lands OF premises, his agent
or employee. or any other person or
persons whom he. or any Of them may
call to their or his assistance. shall
have authority to arrest such offender.
either with or without warrant. either
upon the premises. or I'm immediate
flight therefrom. and If with warrant
then at any place. and take him before
a Justice Of the peace or mayor of q
CITY. in the county where
the offense is committed
such Justice Of the peace or mayor, j.
hereby authorized to hear and de-
termine every such case in summary
manner. and if he shall find such pei
son guilty Of the charge. shall, for each
offense. impose a fine of not more than
five dollars and costs"
This statute may be taken into con-
sideration by the jury in deciding
whether any Of the arrests OF or inter-
ference with the servants or agents OF
the company by the defendants o. their
agents. were made in good faith, or
l. To- Inrsfas ~