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S l DEFENDANTS.
Cdae in Whlah the Sapphire Com pany Was Interested Deolded by Judge Fleisoher, Mackey and Widmer not Guilty of Wilful Deetruotion of Property. The DPmeulty Origluated In a Contest for 1oesession or a Plaer Claim and the Use of Water, Justice Fleisoher yesterday rendered his decision in the ease of the state against Wan. Mackey and Joseph a Widmer, ar reted on complaint of Alex McCauley. on the charge of wilfully destroying property. The case grew out of an attempt by the Engllsh company now operating the sap phire fields on the Missouri, to orocs Wid mer and Mackey'sland with flmes. In his decision for the defendants the justice says: Defendants in this case are aooused to willfully and maliolously cut, injure and destroy ten flume boxes, the property of the Montana Gold and Gem Exploration cem pansy, a corporation. A preliminary hear ing having been had whether there is 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 as to the right of possession of a certain placer min lag claim or so called sapphire claim is pending in the district court now. That the trouble as to the right of possession of the said elaim commenced some time in May last. That at that time Alexander Mo Cauley out off the water supply, which was derived out of a certain spring on the said claim, and by doing so pre vented defenlants from working and developing said claim. At that time the defendants and McCauley, the agent of above named company, had a conversation, ia which McCauley said, "We will make a test ease out of this." A certain dam claimed by defendants was cut, the water let out and also defendant's ditch, leading the water from said spring, was cut on dif fsrens places, so as to prevent the defend ants to work the ground and to take gems or gold out of it. The above named cor poration kept a man there to watch the property during the absence of McCauley. Some time about the 2d or 3d of September MeCauley came back, a flume was built taking the water from the said spring, and operations, to work the ground, and take eat sapphires, commenced; on September 8, a few days thereafter, Mackey and Wid mer, the defendants, at about 12 o'clock at noon came and tore about ten of the flume boxes out, settuig them aside, without cut ting or destroying them, disconnecting, however, the flume by tearing out said boxes in such a way that McCauley was prevented from working the ground for the want of water. The gems'and sapphires in the boxes we:e not disturbed, and McCauley was left in possession of them. No enmity as to Ma Cauley was shown, only one of the defend ants told McCauley that they did not pro pose to have the ground worked out. It did take McCanley about ten or fifteen minutes to have the boxes adjusted again; boxes were not further disturbed, but were severed from each other, where they are joined, and with a pick torn from their place; nails that fastened them to a 2x4 piece of lumber were drawn out; no board out, no box destroyed; excepting a few boards were cracked when the boxes were severed from each other. No enmity nor bad will existed between McCauley and defendants seems to have existed. Se. 216 C. P. Act. Every person who shall willfully, unlaw fuily and maliciously destroy, burn, out or otherwise injure or destroy any goods, chattels or other property of any descrlp tion whatever, the property of another, shall upon conviction thereof, be punished by fine not exceeding $100, or by imprison ment in the county jail not exceeding six months, or by both such fine and imprie onment. The question presents itself to the court, what is "willfully" and what is "malicious- E The word willfully, says Chief Justice Shaw, in the ordinary sense in which It is sneed in the statutes, means not merely vol- k untarily, but with a bad purpose; 20 Pick ering Mass, 220. Sttory defines malice to be J tlny wicked or mischievous 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. J I think that when the legislature created P that section 216 the foregoing definition of C these words was meant, and none other. L Now, was the act of the defendants such an act as would make willful and malicious I destruction of property of another? Was the sact done with a bad purpose in view? E Was it done with any wicked or mischiev- k ous intention of the mind-with a depraved J Inclination to mischief-an intention to do a wrongful act without just cause or ex- y case? Was it done with a wanton disregard of the rights and safety of others? It does not appear that defendants was moved by motives to do injury to the property of another, and with a bad purtose. If the evidence discloses anything it brings to light the fact that defendants solely went there to stop McCauley, whom they considered an intruder upon their rights on that mining g:ound; whom they. considered that he wrongfully did take these valuable gems out of said mining ground, and thereby depeciating the value thereof; their words, testified to by McCau- , lay, discloses their intention: "We do not j propose to have the valuables taken out of that ground." Therefore, the word wilfully, as defined above, and as I think is meant by the stat ute, does not apply to defendants, because 1 no bad purpose is shown. The intent with which the act is done is 1 material, and if it be shown that the de fendant acted in good faith, or under a claim of iinlht, the charge of malisious mis chief cannot be sustained (see numerous authorities, A. E. Ency. of Law, p. 15, f. i.); nor does is show a malicious dest oction of pr'operty, nor uieehievoeus Intention of the _uind. nor a depraved iuchliatiun to mis chlef or an intention to do wantonly a wrongful act without just cause or excuse. I Defendants came there and told McCaulry, i the agent of the aforesaid co, poratiou, that they did not prope,sa to have their ground worked out; tuat they hiad paid their money for it, and would see to it that neither he, nor thesorporation, nor for himself, should not deprive the gmouud of its valuables, and thereby decreasing the value thereof; they did not drive McCauley fromn the ground nor offered any violence to him, nor even all will, they did not threaten him in any man ner, but Widmer, one of the defendants, went with a pick, severed the flume and set the boxes aside, not tearing these boxes apart or destroying them so to make them useless; they did not wantonly cut them or split the boards or bottom of these boxes, nor carried them away; their whole atten tion, according to the evidence introduned by the state, was to stop the flow of the water through the gravel fnlume, the water from the spring on the land which they considered belonged to them, so to stop McCauley from taking any more gems or gold out of the ground, which they in good faith believed was their ground, anid that they only had a righs thereto, the right of possession being now in litigation in the district court; had defendants after dis conneoting the flume by way of taking out the said boxes, wantonly broke some of them or wantonly damaged them, then there would have been a malieious set; but the evidenee shows that there was no dam age done to make any mention of, and not with a bad purpose and will to do damage. Therefore I eannot see that defendants should be held under the statutes for rmaliciously destroying the property of an thlierj to se it seems they oaly used etes liyf repel what they believed m I ` ini o . hat- then olaire. to bi pr, ty from ýlaeteetd in valo hb ea d le atlon of the Lts atioen ow endig In a superlor e eurtl oulrd be adjudged thpt thbt had h a te right to the poaeaoion as the MontanC Gold and Gem Exploration company (Itd) would, under the treagoin eridenao, eharge of wllful and mialicioue destretiot lief I think not, Will it therefore he right t put defendants in bondage or in ail tc await theaotion of the higher court? think not, because in my opinion there ii no caan to believe that an offense has bee committed uander the fasts appearing fron the testimony. One of the defendants, Makely, had shotgun on his shoulder. Thi Is all whal the evidence disclosea as to that faet; thi in itself is no offense if not aaoompiLanied by threate or intimidation, and that hai not been showni nor that it has been used in a threatening manner. On the eontrary, McCauley's evidence discloses the feet that no ill will againal MoCauley existed and therefore the carry. iag of a shotgun by Mackey signifiee noth. ing, and cannot hold defendants on that ground. Since I hold that there is no probable cause to believe defendants guilty of an offense committed, they are therefore dis charged. A HELENA HORSE SECOND. Mikado Makes a Fine showing Against Major Wonder. That Montana-bred horses rank with the beat was shown at Bryan, Ohio, on Sept. i. when Mikado, well known to all lovers of racing in Helena, came in second to the great pacer, Major Wonder, in three straight heats. Major Wonder finished only half a length ahead of Mikado in one heat. In the second heat Mikado was only a neck behind. In the third, however, when Major Wonder won in 2:10. he came in two and a half lengths ahead of Mikado, who was timed at 2:1234, a remarkably good pacing record for the Helena horse. The other horses in the race were Sorrel Dan, owned by C. A. Gosnell. of Rushville, Ind., and El Monarch, owned by John Splan, of Cleveland. They finished third and fourth in all three heats. It was the free-for-all pace for a purse of $500. The official time given for the three heats was 2:15~4, 2:14% and 2:10. Mikado's time in the last heat was, as already stated, 2:12K. The Ameri can Trotter, speaking of the event, says: "The free-for-all pace afforded opportunity for the finest exhibition of speed ever given in the entire meeting, and gave to Major Wonder, of MelroseFarm, Nashville, Tenn., a pacing record of 2:10, making the last quarter in twenty-nine seconds. Four starters scored, with Sorrel Dan in the lead, but Major Wonder gained the lead before the quarter pole, and finished half a length in the lead, with the field strung. Major Wonder wine the second heat a neck ahead of Mikado, while in the third he makes his fine record, with Mikado finish ing two and a half seconds later. This rec ord certainly speaks well for so new a track and was most enthusiastically received by the grand stand." Mikado is owned by Aleck Lewis and J. B. Huffaker, of Helena, and was bred and raised by Huntley & Clark. PERSONAL. E. A. Dawkins has been appointed chief train dispatcher of the Rocky Mountain division of the Northern Pacific, vice James Burke, resigned. John R. Biles, one of Helena's popular young business men, leaves to-morrow for his old home at Rockport, Ind. Mr. Biles will be greatly missed by his numerous friends and it is hoped he will come back tc Helena before very long. Among the departures via the Unior Pacific yesterday were GCstave Lehman for Milwaukee, Wis., David Owen for St. Joseph, Frank Kaczmanek for Hambuig Germany, C. A. Kenno e for New York, and J. W. Fisher, for Milwaukee. The departures via. the Great Northern yesterday were Leslie Snigrove for Phila deiphia, H. R. Milford for Chicago. Eliza Frethady and Felix Frethady for St. Louis, Adam Walton and family for Sioux City, E. M. Woods and wife for Philadelphia. Charles Stoul for St. Paul. Lottie anc George Monroe, for San Francisco, Charler Frost for Baltimore, Mrs. Bullard for Indianapolis, M, Cruse for Waterbury Conn., and Andy Curce for Chicago wear among the departures via. the Northert Pacific yesterday. Arrivals at The Helena. EJ Carter, Denver WV J }[udson, St Louis G A Jeffery, ht Paul A W Mcintyre, Philips Mrs W tu Cunningham, burg Washington n Miss r\albrilge, Gor J M lox, lied Lodge mantown, Pa Margaret ;,ather and J ,i Vallontine and niece, New York valet, New York Jas Jopling and wife, C H 'Ihompsun. Red Marquette, Mich L.odge F H Malone, Miles Walter Mathews. Lonis City vilie. Ky Frank C Griffith, New Pertley, Lushing. New York York J H Weitt, New York N M O'Rrien, St Louis F0 Buck. Ilenver, John ltenner, Great C H Showers, ban Fran- alils rioco R L Anderson, Cam Chas Mayne and wife, dPn, N J White bulphur Sp'gs Mias Marie Simms, The limes Hleitman, White Sulphur bp'gs White Sulphur Sp'go Mr Adams and wife, E W Beattie. holenla Wolf Creek M tSilverthal. New York R T BaylisF, Maryeville J R bitevens, New York W it Moon, New York H Meinhard, New Or- Ii L Weaver. St Louie leans N N Cington, (Chicago W I Davie, Jay Gould John F Kelly, St Paul C iG Whitcomb. Chicago Arrivals at the Grand Central. Thos P Moran. Havre J M Powers, Great W it Rysr. Pittsbnrg, Falls l'a D 1, . Barker. Neihart W lE Nagar, St Clair John J Wightman. H M Jones, Portland, (leveland. O (Ire Louie Miler, Corbin MIis Elsie Miller, Hall- Miss Ellis, Touro. N s fax, N i E W McCune, Great R J Pheeney, Great Falls Falls G(eorge Monroe, Toston W L Hay. Boulder lJae i lhurnsay, Ielena Julius BHre. Town-end R M Brown, Bozeman Josus, hitney, Mariar- Mrs Sol Smith, Mar rt Slather Co, New garet Mlather Co, York \,.w York Mrs E C T'lttle, Mar- E:rskine Lewis, Mar garet Jlather Co, New Uoret Mather Co, New York York Mine Frances Uentley. Charles Howell, Bis Portland, tire marck Et hiuell Minneapolis C(' Ii irdseye, Avon F G( Arnitt, t hinook Johl A Htoffman, (treat ('has \ Pornersy, (ireat Fills Falls ohoert Smith. York John Forest, Lincoln ' Mclntyre, (ilendive Mre I Mcilntyre and 1: 1' Clark, White cul child, tilendiv, plhur Springs It N Nenoedy. Mistola s (' Jones. Maryavillo tilhar.s N ('rutchfiel, ('las lowers, Living lirooula stoo J W McKeen, Dayton, Leo W Howard, Mis Ohio soulsa EIi Cardwell, Jefferson llugh H Tagu, P'rince Joelh Bolwden, tova l.dwards lislanil Wsetti a J Maekey, Butte W rauk Loox, l'hila- i Wo.f. Margaret deiphia Matiher (o John It liles, Helena The New Merchants. Operated by the Merchants Hotel corn iany, now begs to announce that its rooms are open for the reception of guests. tooms will be offered to transcient guests at $1.25 per day (parlor floor), $1 per day r(third floor), 75 ce'.ts per day (fourth floor). Ex tra for more 'han one occopant. All mod ern improvement, steam heat, electric light, return electric bell call system, and senshine in every guest chamber. Brussels and velvet carpets used exclusively through eot the house. Office, elegant bar and billiard room, cigar stand and palatial bar ber shop on first floor. lNINGi Oii)oM RS-OPVENnD. The diningroonm in this hotel has been leased to and is now operated separately by the Misses Nagle, who are prepared to fur nish board. Meals 50 cents. Board $7 per week. Tiokets, twenty-one meals, $H. Butcher ,& Bradley have the finest line of stampeid linens in town and their prices are .x troniely low. Amnnerioan leglou of Honor. ' here will be a regular meeting of Mon tans council 1,213 this Wednesday evening at eight o'clock. D. J. WACT, Condaetor. O.. . Kllawoln Booretary. THE MILi*i SAL A Large 4ttehdam* 4wana m*iri. tias at the Ar5me# t The crowd which attended *o atitir ball last night 0le~d i*,* ible fo of space in the armor? ,Th e tenbe of Vthe national guard were out ia goodly uatmbsor and tu full uniform. Ttl, wwit the ~ageh dresses of the ladles and ther 4etjons made quite a pretty pletire. Ptroma , of the chandeliers etreame of roed white n b ble rean to the sldes of the large ball I one corer were tents, one for A "guard house" and the others ft "mess rooms, where those present took t et reastfha mente. In another corner of the 'oom was a barrel of lemona t quench the thit.. with after the. daoes. Gen. Ohaes , Curtis was present and was the relipient of much attention. The programme included twenty-four danes and lasted until the early hours of the morning. AMUSRMENTS, Ming's Opera house was illed last even Ing with one of the most fashionable audi ences seen within its doors for many a day. All the boxes were also occupied, The attraction was Margaret Mather and the play Romeo and Juliet. Miss Mathe is an deal Juliet, and she was the reipient of numerous encores. Walter Mathews as Romeo also proved a favorite, and the rest of the company we'e above the average. It was Miss Mather's trst appearance in Helena, and whenever she comes in the future she may be assured of a warm' re ception. Nellie MetHery. Manager Peel, "mociter of interest" for "A Night at the Circus," which appears at the opera house b riday and Saturday of this week, makes the following unique no ties of his star's appearance: "A Night at the Circus," with all its spangles. ginger bread, red lemonade and laughter, will continue to please the people who buy their tickets of the man in the red wagon. Look out for the ticket speculator and flim-flammera, ae.the management will not be responsible for any short change. Excelsior Lodge No. 5, I. O. O. B. Meets every Wednesday. 4 A regular meeting of the above Lodge will be neld this evening at their lodge room in this city at 8:0) o'clock. Sojourning brethren are cordially invited to attend. Hi. MOTHEs, N. G. H. T. DAVS. Secretary. Red Cross No. 32, K. of P. Regular meeting of abovelodge will be held this Wednesday evening ait eight o'clock -harp5 at B. of It T. hall, Northern Pacific depot. Sojourning brothers are kindly invited to attend. C. E. N EEDrni, J. E. STEWARnT. K. of H. and S. GO TO THE GRAND CENTRAL RJEOPNED. HOTEL BAR For the coolest glass of Beer in the city. MIXED DRINKS A SPECIALTY. JAY D. PHILLIPS. Proprietor. ANGLERS' OUTFITS. You are not in it if you purchase your Fly Hooks, Rods, Reel, Line. Creel, Fly Book, Leader Box or Waders before you come in and inspect my stock, which you will find not only the largest, but the best selected in all the details of a first class stock of good', in the city, Prices areright, and according to the quality. There is no misrepresentation as to quality. All kinds of rod mountings in stock. Bicycle Sundries. Gns,. Revolvers, Ammunitionu. and general stock of Sporting Goods. M. H. BRYAN, GUN STORE, 103 BIROADWAY. IIELE.NA. FASHIONABLE FURS We are now receiving the latest New York Styles In Seal and Other Fur Garments. CAPES, WRAPS, MUFFS, Collars, Boas, Etc. As Furriers we can show you designs not found elsewhere, and at prices guaran teed as low as any reliable house in the country. If you intend buying do so early and save money, as prices will be higher later. RELIABLE FURRIERS. BABCOCK & CO.,ELEA AND BUTTE. A RELIABLE SUPPORT Is realized by all woea rr of ur splendid SHOES. We buy the very best makes. We hove them made of the very best materials. We krop only tehe latest styles. We can and will furnish a perfect fit. Luir,' Fine Footwear is a leading feature of our stock, and we conhfidently assert that no finer assortment has ever been brought to this city than we are now displaying. Prices are right, too. CLARKE & FRANK-=_- MNTANA SHOE CO. SAN S ROS.. DRESS GOODS. 50 Gents Per Yard. We place on sale this week a handsome variety of New Scotch Cheviots and Fancy Suitings, in excellent styles, for Fall and Winter wear, at the price given above, 50 cents per yard. Also a large assortment of NEW BELGIAN SERGES in all colors, at 65 Gents Per Yard. We are exhibiting a very extensive and choice collection of Fine Imported Dress Patterns, in all the latest fashionable effects As examples of the splendid values in the new Autumn and Winter Dress Patterns we direct attention to the variety we display in Cheviots, Ladies' Cloths and Fancy Suitings at $4.50 Per Pattern. SANDS BROS. SPATENTS. "" United States and Foreign Pat ents obtained and any information given. EDWARD C. RUSSELL, Attorney at Law. Pittsburgh Block. Helena. Moat SCHOOL DISTRICTS CONTEMPLATING issuing Bonds 0 1or building School Houses will find it to their interest to correspond with me. I have purchased more School Bonds in Montana during the past year than all other bond houses combined. Am prepared to advance money for the erec tion of School Hcuses in advance of the issue of bonds. Wall purchase all classes of Bonds, State, County and City War rants. Correspondence sohcited. H. B. PALMER. 10 EDWARDS ST.. HELENA, MONT. Rook and Ore BREAriERS DGRUSMERS. ("THE BLAKE STYLEE.") This Style of Rock Breaker, after 20 years' practical test, has proved to be the beat ever designed for the purpose of Breaking Quartz, Emery, Gold and Silver Ores And all hard or brittle substances, aJso for making RAILROAD BALLAST OR CONCRETE. Our adjustable toggle block IPat. No. 227,5541 enables us to adjust the machine while in motion to the size of any stone or particular product. There are other improve. ments possessed by the machines not equalled by any other in the world. Gold Medal awarded at the Massachusetts Mechanics' Associa. tion, 1881, and Silver Medal (special) at the American Institute, New York, 1882. Farrell Foundry and .nsonia, Machine Company, Gonn. C. T. Morrell, Practical Gunsmith, 17 N. Main Street, lclena, Montana. Wbelgate and Retail Dealer l Gans., Flshlne Tesekt, Am Wsu,. Sporting deed. Teot, eoats, Oars, Camping Outfits. BIeyetes. E.e. fr *' T " repaired alsal Trunks, Parasols, Umbrellas, Ete. Key . *.1 I Speelelty. Ouss. Test. and Fshlag tlakl.e for rean. ,. c leDhonri