will not be criminal, unless it unreasonably interferes with navigation. Even streams not technically navigable, but which are used for floating logs, rafts, etc., may be so far public in their use that an obstruction thereof will be criminal. So it is said that at common law it is a nuisance to obstruct the passage of fish in a non-navigable stream, but there may be statutory provisions warranting obstruction. Obstruction of a harbor or a landing" is also indictable. The erection of buildings or the making of deposits on the shore of a navigable stream, or of a harbor between its high and low water mark, not interfering with the navigation, is not a nuisance, for an owner has the right to make reasonable use of the bank; but this does not authorize the forming of a pool for rafts by damming the stream, no such exception being made by the statute. The act of congress prohibiting obstruction of navigable streams is directed toward casting into or constructing upon the bed thereof anything creating an obstruction more or less permanent in character, and does not apply to the floating of logs or rafts which may temporarily obstruct the surface of a stream. In charging the obstruction the indictment should allege the name of the river, and that at the place where the obstruction is complained of it is navigable and a common highway, etc., and should state the place where the obstruction is situated, and that it hinders the use of the stream by the public as a highway.10 If the statute prohibits certain forms of obstruction the intent is imma 18. v. Freeport, 43 Me. 198; S. v. Godfrey, 12 Me. 361; Ensworth v. C., 52 Pa. St. 320; Renwick v. Morris, 7 Hill (N. Y.), 575. Whether the obstruction is unreasonable is for the jury: Reg. v. Betts, 16 Q. B. 1022; or for the court if the proceeding is in equity: Pennsylvania v. Wheeling, etc. Bridge Co., 13 How. 518. 2 Gerrish v. Brown, 51 Me. 256. A stream is to be deemed navigable if so used and recognized: S. v. Thompson, 2 Strobh. 12. 3 C. v. Chapin, 5 Pick. 199. Rex v. Tindall, 6 A. & E. 143; S. v. Wilson, 42 Me. 9. 58. v. Graham, 15 Rich. 310. 6 Zug v. C., 70 Pa. St. 138. Between high and low water marks both the abutting owner and the public have some rights: S. v. Wilson, 42 Me. 9. But the rights of the owner may be defined and limited by legislation: C. v. Alger, 7 Cush. 53. 7 C. v. Church, 1 Pa. St. 105. 8 September 19, 1890, ch. 907, § 6; 26 Stat. at Large, 453. 9U. S. v. Marthinson, 58 Fed. R. 765; U. S. v. Burns, 54 Fed. R. 351. 10 Cox v. S., 2 Black f. 193. The particular place of obstruction should be stated: U. S. v. Burns, 54 Fed. R. 351. terial. It is immaterial that the erection complained of would be beneficial to the public.2 III. INTERFERENCE WITH THE OPERATION OF RAILROADS. 1196. What criminal.-Railroads are in one sense public highways, and the obstruction or interference with the operation thereof is by statute made criminal; and such statutes are usually applicable to any railroad, whether duly chartered as such or not, and whether or not the company has lawfully secured the right of way; and to street railways as well as those operated by steam. It is not necessary to allege that 5 the railroad company is a corporation or a carrier or that its railroad is used for travel. It is not essential that the obstruction actually obstructed and hindered trains; nor, indeed, that it was calculated to do so, if it was placed on the track for that purpose. But the act complained of must be one calculated to obstruct the operation of the road in a way that would be dangerous, and therefore it was held that the act of pulling a cord used as a signal to stop the train, with the purpose of doing so, although unlawfully done without authority, was not criminal within the meaning of the statute.10 But under the English statute it is held to be an "obstructing" to stop a train by signals without authority." If the statute provides for the placing of obstructions on the railroad wilfully and maliciously so as to endanger life, the obstruction must be one 2 P. v. Vanderbilt, 28 N. Y. 396; P. v. St. Louis, 10 Ill. 351; Resp. v. Caldwell, 1 Dall. 150; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; Rex v. Ward, 4 A. & E. 384 (overruling Rex v. Russell, 6 B. & C. 566). 3 Weinecke v. S., 34 Neb. 314; Mitchell v. S., 94 Ala. 68; S. v. Oliver, 55 Kan. 711. 4 Hodge v. S., 82 Ga. 643. S. v. Hessenkamp, 17 Ia. 25. 6 C. v. Hicks, 7 Allen, 573; C. v. Temple, 16 Gray, 69. 7S. v. Wentworth, 37 N. H. 196. 8 S. v. Clemens, 38 Ia. 257; S. v. Kilty, 28 Minn. 421. 9 Riley v. S., 95 Ind. 446. Under a statute prohibiting the placing of obstructions on a track, whereby cars are thrown off, it was held not criminal to so place an obstruction as to throw off a hand-car, the statute not specially mentioning handcars: Harris v. S., 14 Lea, 485. 10 C. v. Killian, 109 Mass. 345. 11 Reg. v. Hadfield, L. R. 1 C. C. 253; Reg. v. Hardy, L. R. 1 C. C. 278. calculated to cause that result.1 Such a statute relates to endangering the lives of persons working or traveling on the railroad, and does not extend to an act directed especially against an individual employee by which the lives of travelers generally are not endangered; but it is not essential that the defendant intended to take life, if the act is wilful and malicious and actually does endanger life. Malice will be implied from the intentional doing of the act, even though the specific intent to derail the train or imperil the lives of passengers is not shown; for instance, where, after obstructing a track, the engineer of the approaching train was warned thereof. The charge of wilfully and maliciously obstructing a street railway is established by proving the wilful intent on the part of a person whose vehicle is on the track of a street railway to follow his own convenience to the disregard of others, although there is no specific intention shown to injure the company.? Of the same character as the statutes just described are those which make it criminal to throw missiles at a railway car or locomotive in motion, or in use for transportation although temporarily stopped.R IV. LAW OF THE ROAD. § 1197. Turning to the right; bicycles.-The general statutory provision in the United States with reference to the use of highways is that a person driving a carriage or other vehicle and meeting a person like himself traveling shall turn to the right of the traveled portion of the road, and it may be an offense not to do so whether the party who fails to drive to the right leaves sufficient room for the person meeting him or not, and contributory negligence on the part of the other person is not material. The center of the traveled part of the road means Bullion v. S., 7 Tex. Ap. 462; Mc- the crime of attempting to wreck a Carty v. S., 37 Miss. 411. 2 P. v. Dunkel, 39 Mich. 255. S. v. Beckman, 57 N. H. 174. 4S. v. Hessenkamp, 17 Ia. 25. But the presumption of wilfulness is not conclusive: Allison v. S., 42 Ind. 354. Clifton v. S., 73 Ala. 473. S. v. Johns, 124 Mo. 379; Crawford v. S., 15 Lea, 343. To constitute train, it must appear, if no wreck ensued, that there was an intent or purpose to wreck: Nowell v. S., 94 Ga. 588. 7 C. v. Hicks, 7 Allen, 573; C. v. Temple, 16 Gray, 69. 8 S. v. Boyd, 86 N. C. 634. 1 the center of the part which is worked, whether it is in the center or at one side of the highway. A statute of this kind relating to carriages or vehicles applies to a bicycle. This rule as to turning to the right is applicable not only to public highways, but to any road which is generally used by the public. It is usually made criminal to ride or drive a horse or other animal upon a sidewalk, and such a statute is applicable to bicycles, as it is intended to cover the driving of a vehicle over the sidewalk, and there is no reason for a distinction between a bicycle and any other vehicle.' § 1198. Racing on the highway.- It is usually made criminal to race along a public highway, as such an act involves danger to property and person. To constitute racing it should -appear that two persons engaged therein, and that they competed with each other in the speed of their animals. It is not necessary, however, that any bet be made, or that a determinate distance be run, or that judges be appointed.' 1 Clark v. C., 4 Pick. 125. v. S., 3 Ind. 123; S. v. Burgett, 1 Ind. 2S. v. Collins, 16 R. L. 371; C. v. 479; Thrasher v. S., 6 Blackf. 460. Forrest, 170 Pa. St. 40. It seems this would be so at common 6 S. v. Catchings, 43 Tex. 654. 362 CHAPTER 63. VIOLATION OF LIQUOR LAWS. I GENERAL STATUTORY REGULA- IV. ILLEGAL SELLING OR KEEPING TIONS; CONSTITUTIONALITY AND CONSTRUCTION OF STAT- FOR SALE V. SPECIAL EXCEPTIONS IN CASES VL SPECIAL PROHIBITIONS. IL WHAT DEEMED INTOXICATING VII. THE PROCEDURE; INDICTMENT; LIQUOR. IIL SYSTEMS OF REGULATION; LI CENSE; LOCAL OPTION. EVIDENCE I. GENERAL STATUTORY REGULATIONS; CONSTITUTIONALITY AND CONSTRUCTION OF STATUTES; CONCURRENT FEDERAL, STATE AND CITY REGULATIONS. § 1199. General character of statutory regulations.— Aside from statutory provision there is no crime involved in the sale of intoxicating liquors except that of so conducting the business as to render the place where sales are made a public nuisance.' In general, in the absence of statute, intoxicating liquors may be dealt with as other articles of commerce." From early times in England there have been statutes regulating the selling of intoxicating liquors, and these statutes have been the basis of legislation in the United States. But this legislation has in recent years taken on such a multiplicity of forms that it is extremely difficult to cover it by any general discussion. The most common method of regulation is that of 1 Stephens v. Watson, 1 Salk. 45. And see Rex v. Faulkner, 1 Saund. 249; s. c., 2 Keb. 506; Rex v. Edwards, 3 Salk. 27; Rex v. Marriot, 4 Mod. 144; Rex v. Ivyes, 2 Show. 468; supra, §§ 1137, 1169. 2C. v. McDonough, 13 Allen, 581; 8. v. Fay, 44 N. J. 474. As to property in liquors, see infra, § 1267. "The earliest English statute seems to be that of 11 Henry VII, ch. 2 (1494), which authorized the denial of the right to keep an ale-house. But the statute to which our present regulations are more immediately traceable is that of 5 & 6 Edward VI, ch. 25 (1552), which restricted the keeping of ale and tippling-houses to those to whom a license should be granted. |