evidence of an intent to defraud, on the part of such banker, brokeror officer of such banking company or incorporated bank.

[1881 S., p. 174. In force September 19, 1881.]

2032. (1953.) Selling or secreting state arms.-52. Whoever unlawfully sells, disposes of, hides, secretes, or detains, or refuses to give up, to any person authorized to demand and receive them, any of the arms, accoutrements, ordnance stores, camp or garrison equipage belonging to this state, shall be fined in any sum not more than five hundred dollars nor less than five dollars, to which may be added imprisonment in the county jail not more than six months nor less than ten days.

2033. (1954.) Removing mortgaged goods.-53. A mortgagor of personal property in possession of the same, who, without the written. consent of the owner of the claim secured by the mortgage, removes any of the property mortgaged out of the county where it was situated at the time it was mortgaged, or secretes or converts the same or any part thereof to his own use, or sells the same or any part thereof to any person without informing him of the existence of such mortgage, shall be fined in any sum not exceeding three hundred dollars, to which may be added imprisonment in the county jail not exceeding six months.

(As amended, Acts 1891, p. 399. In force June 3, 1891.) The purchaser of mortgaged goods who removes the same to another county is not liable under this section. Ross v. Menefee, 125 Ind. 432.

2034. (1955.) Malicious trespass.-54. Whoever maliciously or mischievously injures or causes to be injured any property of another or any public property is guilty of a malicious trespass, and, upon conviction thereof, shall be fined not more than two-fold the value of the damage done, to which may be added imprisonment in the county jail for not more than twelve months.

See sections 2040, 2054.

As to what is a sufficient charge of malicious injury to property, see Ostler v. State, 3 App. 122.

An indictment for malicious trespass must describe the specific injury done to the property. State v. Aydelott, 7 Blkf. 157; State v. Jackson, 7 Ind. 270; Brown v. State, 76 Ind. 85.

But the means used to effect the injury need not be stated. State v. Merrill, 3 Blkf. 346; Hayworth v. State, 14 Ind. 590.

The owner of the property should be named in the indictment. State v. Jackson, 7 Ind. 270; Croy v. State, 32 Ind. 384; State v. McKee, 109 Ind. 497.

The amount of damage done to the property should be stated in the indictment, but the value of the property need not be alleged. Harness v. State, 27 Ind. 425; Sample v. State, 104 Ind. 289.

It may be alleged that the damage was either to the property or the owner thereof. State v. Sparks, 60 Ind. 298; State v. Pitzer, 62 Ind. 362; Kinsman v. State, 77 Ind. 132; Sample v. State, 104 Ind. 289; State v. McKee, 109 Ind. 497.

It need not be alleged that the acts were unlawfully done. State v. Maddox, 85 Ind.

The accused must be shown to have acted maliciously in order to constitute malicious trespass. Dawson v. State, 52 Ind. 478; Lossen v. State, 62 Ind. 437; Gaskill v. State, 56 Ind. 550.

If persons acting in good faith in asserting their own rights injure the property of another, they are not guilty of malicious trespass. Palmer v. State, 45 Ind. 388; Dawson v. State, 52 Ind. 478; Lossen v. State, 62 Ind. 437; Hughes v. State, 103 Ind. 344; Barlow v. State, 120 Ind. 56.

An action will lie for the malicious killing of a dog. State v. Sumner, 2 Ind. 377; Kinsman v. State, 77 Ind. 132; Dinwiddie v. State, 103 Ind. 101; Hewitt v. State, 121 Ind. 245; Sosat v. State, 2 App. 586.

The malicious taking and conversion of goods is not a malicious trespass. State r. Cole, 90 Ind. 112.

Persons in possession under color of title and claiming title to lands in good faith are not guilty of malicious trespass for injury to the property. Windsor v. State, 13 Ind. 375; Hughes v. State, 103 Ind. 344.

Title to land can not be tried in an action for malicious trespass. Windsor v. State, 13 Ind. 375; Dawson v. State, 52 Ind. 478.

In a prosecution for be proven as charged.

a malicious trespass to lands, the ownership of the lands must Hughes v. State, 103 Ind. 344.

2035. (1956.) Injuring telegraph or telephone poles or wires.— 55. Whoever maliciously or mischievously injures any telegraph pole or telephone pole, or the wire or any part of the apparatus thereof, upon conviction thereof, shall be fined not more than five hundred dollars nor less than five dollars, and imprisoned in the county jail not more than six months nor less than thirty days.

2036. (1957.) Attacking public conveyance.-56. Whoever maliciously or mischievously shoots a gun, rifle, pistol, or other missile or weapon, or throws a stone, stick, club, or other substance whatever, at or against any stage coach, locomotive, railroad car, or train of cars, or street-car on any railroad in this state, or at or against any wharfboat, steamboat, or other water-craft, shall be imprisoned in the county jail not more than one year nor less than thirty days, and fined not more than one hundred dollars nor less than ten dollars.

2037. (1958.) Penalty if person is wounded or killed.-57. In case any person on such stage coach, locomotive, car, train of cars, street-cars, or wharf-boat, steamboat, or other water-craft, shall be injured or wounded by any such act as is specified in the preceding section, the person so offending shall be deemed guilty of an assault and battery with intent to commit murder, and upon conviction thereof, shall be imprisoned in the state prison not more than fourteen years nor less than two years; and if death ensue, such offender shall be guilty of murder in the second degree, and shall be imprisoned in the state prison during life.

2038. (1959.) Running hand-car without authority.-58. Any person who shall unlawfully place, put, move, run, or who shall unlawfully cause to be placed, put, moved, or run, any hand-car or pushcar upon the track of any railroad, he not being at the time an operative upon such railroad, and not having the consent of the owner or operator of such railroad or of the roadmaster or his assistants, shall be deemed guilty of a felony, and, upon conviction thereof, shall be

fined not exceeding five hundred dollars, be imprisoned in the state prison not less than six months nor more than three years, or fined and imprisoned in the county jail of the proper county for any determinate period of time not exceeding one year.

2039. (1960.) Obstructing railroad track.-59. Whoever willfully and maliciously places any obstruction upon the track of any railroad or street road or inclined railroad track, or changes any switch or removes the fastenings thereof, so as to endanger the passage of trains; or breaks, destroys, steals, takes, or carries away any lock or guard upon such switch; or willfully and maliciously commits any other act, in order to throw the engine or cars running upon such railroad from such track-shall be imprisoned in the state prison not more than fourteen years nor less than two years, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period; and if from any accident on any such road, resulting from any such act, any person be so injured that death ensue as the immediate consequence thereof, the offender is guilty of murder in the first degree, and shall suffer death or be imprisoned in the state prison during life.

Section 66 of the act of 1852, making it a misdemeanor to obstruct a railroad, was held not to repeal a section of the criminal code of 1852 corresponding to the preceding section. Coghill v. State, 37 Ind. 111.

An indictment under this section is sufficient if it follows the language of the statute. Riley v. State, 95 Ind. 446.

On a trial of a charge under this section it need not be proven that all the obstructions alleged to have been put upon the track were put there. Allison v. State, 42 Ind. 354.

2040. (1961.) Injuring vines or trees.-60. Whoever cuts down or destroys, or by girdling or any other means injures any standing or growing vine, bush, shrub, sapling, or tree on the land of any other person, or on land belonging to the state, or to any county or township therein, or on any land reserved or granted for the use of schools or seminaries, without a license to do so from competent authority; or who, without such license, shall cut down or remove from any such lands, or from lands belonging to the United States, any tree, stone, timber, or other valuable article,-is guilty of a trespass, and, upon conviction thereof, shall be fined in five times the value of such property, to which may be added imprisonment not exceeding twelve months in the county jail. The provisions of this section shall not apply to actual settlers upon public lands, who cut timber and use stone for their own farming purposes upon the land on which they may reside.

An indictment for the removal of articles from lands must show that such articles constituted a part of the realty. Bates v. State, 31 Ind. 72; Dorrell v. State, 80 Ind. 566.

It must also be alleged that the articles were removed off the land. Stribbling *. State, 56 Ind. 79.

The land from which articles are removed need not be specifically described in the indictment. Newland v. State, 30 Ind. 111; Dorrell v. State, 80 Ind. 566.

It need not be alleged in the indictment the damage done to the owner by the cutting or removal of trees from lands. State v. Shadley, 16 Ind. 230.

An allegation that the acts were done without the consent or permission of the owner is equivalent to an allegation that such acts were done without license from competent authority. State v. Marlett, 26 Ind. 198.

A prosecution will not lie against a person in possession of lands under a contract of purchase, even though the contract is invalid. Howe v. State, 10 Ind. 492.

Persons cutting and removing ice may be liable to a prosecution under this section. State v. Pottmeyer, 30 Ind. 287; State v. Pottmeyer, 33 Ind. 402.

Tenants cutting and removing trees from lands without right may be liable to prosecution. Derixson v. State, 65 Ind. 385.

To allege the removal of rails in a fence on the land of another is sufficient to show the ownership of the rails, and that they constituted a part of the realty. Dorrell v. State, 80 Ind. 566.

Charging a malicious and mischievous tearing down and carrying off of a fence charges a malicious trespass, and not a violation of this section. Squires v. State, 59 Ind. 261.

When the title and boundary lines to the lands has been established in a civil action to which the accused was a party, the record of the action is admissible against him. Dorrell v. State, 83 Ind. 357.

2041. (1962.) Defacing tombstones.-61. Whoever willfully, mischievously, or maliciously disfigures, defaces, or removes any tombstone, monument, gravestone, or other structure erected to perpetuate the memory of any deceased person; or any fence, railing, or other work in or around any public or private cemetery, or burial place; or any tree, shrub, or plant therein,-shall be fined not more than five hundred nor less than fifty dollars, to which may be added imprisonment in the county jail not more than six months.

The section of the crimes act of 1852 corresponding to this section was held to apply only to cemeteries or burial places established pursuant to law. Winters v. State, 9 Ind. 172.

2042. (1963.) Injuring trees on highway.-62. Whoever shall willfully, maliciously, or mischievously, and without right, cut down, or in any way injure, any tree on the public highway shall be fined not more than five hundred dollars nor less than five dollars.

2043. (1964.) Obstructing highway, etc.-63. Whoever, in any manner, wrongfully obstructs any public highway, tow-path, canal, turnpike, plank, or coal road, or injures any toll or other bridge, or toll-gate, culvert, embankment, or lock; or makes any breach in any canal; or injures any material used in the construction of such roads or canal, shall be fined in any sum not more than five hundred dollars, to which may be added imprisonment in the county jail not more than three months nor less than ten days.

See sections 2273, 2291, 2297.

The statute giving a civil remedy for obstructing a highway does not repeal this section. Harvey v. State, 5 App. 422.

An indictment for obstructing a highway need only describe the same by giving its beginning, course and terminus. State v. Buxton, 31 Ind. 67; State v. Stewart, 66 Ind. 555; Nichols v. State, 89 Ind. 298.

The particular place on the highway where the obstruction was placed need not be stated in the indictment. State v. Buxton, 31 Ind. 67.

The indictment must show such an obstruction of the highway as will in some degree interfere with the public use thereof. State v. Baker, 58 Ind. 417.

The building of an embankment across a highway is an obstruction thereof. State v. Day, 52 Ind. 483.

A charge in the language of the statute for obstructing a highway is sufficient. No criminal intent need be alleged or proven. State v. Railroad Co., 120 Ind. 298.

The obstruction of sidewalks or any portion of the streets of cities and towns is a criminal offense. State v. Berdetta, 73 Ind. 185; Bybee v. State, 94 Ind. 443.

Municipal corporations can not authorize the permanent obstruction of any portion of the streets thereof. State v. Berdetta, 73 Ind. 185.

Proof of use of a highway by the public, and of the working thereof, may be sufficient evidence of its establishment. Hays v. State, 8 Ind. 425; Boyer v. State, 16 Ind. City v. Evans, 37 Ind. 229; Debolt v. Carter, 31

451; Summers v. State, 51 Ind. 201; Ind. 355.

Proof of the use and working of a highway is not conclusive of its character, but the presumptions arising from such facts may be rebutted. Johns v. State, 104 Ind. 557. There may be a public highway without its ever having been worked as such. State v. Frazer, 28 Ind. 196.

A highway may be established that is only opened at one end. Moore v. Ange, 125 Ind. 562; Adams v. Harrington, 114 Ind. 66.

Supervisors of highways have no authority over the streets of incorporated towns of cities, and may be guilty of obstructing the same while attempting to make repairs thereof. State v. Mainey, 65 Ind. 404.

To constitute the dedication of lands for a public highway, the lands must be used by the public for such purpose with the consent of the land owner, with an intention on his part to so dedicate the land, and an acceptance thereof on the part of the public. Mansur v. State, 60 Ind. 357; Sullivan v. State, 52 Ind. 309; City v. Dahn, 36 Ind. 330; Mansur v. Haughey, 60 Ind. 364; Mauck v. State, 66 Ind. 177; Bidinger v. Bishop, 76 Ind. 244; Tucker v. Conrad, 103 Ind. 349; Shellhouse v. State, 110 Ind. 509; Pennsylvania Co. v. Plotz, 125 Ind. 26; Town of Marion v. Skillman, 127 Ind. 130.

The use by the public of lands for a highway with the assent of the owner for such a length of time that the interruption of such use would materially affect public accommodation will be sufficient to raise a presumption of dedication. Hays v. State, 8 Ind. 425; State v. Hill, 10 Ind. 219; Hart v. Trustees, 15 Ind. 226; Holcraft v. King, 25 Ind. 352; Debolt v. Carter, 31 Ind. 355; City v. Evans, 37 Ind. 229; Summers v. State, 51 Ind. 201; Campbell v. O'Brien, 75 Ind. 222; Carr v. Kolb, 99 Ind. 53; City v. Kingsbury, 101 Ind. 200; Town of Marion v. Skillman, 127 Ind. 130.

Twenty years' uninterrupted use of lands for a public highway constitutes an absolute bar to a denial of the right of such use. Hays v. State, 8 Ind. 425; Hart v. Trustees, 15 Ind. 226; Debolt v. Carter, 31 Ind. 355; Summers v. State, 51 Ind. 201; Town of Marion v. Skillman, 127 Ind. 130.

If a highway is used for twenty years at a less width than that at which it was established, and improvements have been made along the line according to such restricted width, the state will be estopped from claiming such improvements as an obstruction of the highway. Hamilton v. State, 106 Ind. 361.

Corporations may be prosecuted criminally for obstructing public highways. State v. Baltimore, etc., Co., 120 Ind. 298; Pittsburgh, etc., Co. v. Kitley, 118 Ind. 152. An indictment for injuring a toll-gate need not allege a malicious purpose nor a mischievous intent. State v. Walters, 64 Ind. 226; Jay v. State, 69 Ind. 158.

Toll-gates on turnpikes that have been out of repair for an unreasonable time may be removed without criminal liability. State v. Flanagan, 67 Ind. 140.

Persons who fail to produce evidence at a toll-gate of payment of toll as required by the rules of the company, are not justified in breaking down the toll-gate, although they may have paid the toll. State v. Brumfiel, 83 Ind. 136.