Commonwealth v. Hall.

dence to convict; leaving it for the defendant to prove, if he can, that the birds found in his possession were not taken or killed in this Commonwealth at a prohibited time. So construed, the statute is reasonably adapted to carry out its object, and is free from all constitutional difficulty. Commonwealth v. Williams, 6 Gray, 1, 6; Phelps v. Racey, 60 N. Y. 10; s. c., 19 Am. Rep. 140; Railroad Co. v. Husen, 95 U. S. 465.

In the case at bar, it being agreed that the woodcock which the defendants had in their possession, offered for sale and sold, had been lawfully taken or killed in another State, the defendants were wrongly convicted.

The cases mentioned at the argument are distinguishable from the present casc. The statute of 39 and 40 Vict., ch. 29, § 2, under which it was held in Whitehead v. Smithers, 2 C. P. D. 553, that a person having in his possession a plover killed abroad might be convicted, differed from the statute before us in explicitly enacting that any one who should at certain seasons "kill, wound or take any wild fowl, or have in his control or possession any wild fowl recently killed, wounded or taken," should be subject to a penalty; and in omitting to re-enact the clause of a previous statute, which allowed a defendant to show that the bird had been bought or received before the prohibited time, or from some person residing out of the realm. And the statute of New York of 1871, ch. 721, under which the defendant was convicted in Phelps v. Racey, above cited, for having in his possession quail killed in another State, enacted that no person should kill or expose for sale, or have in his possession "after the same has been killed," any quail between the times mentioned, and defined the cases (of which that before the court was not one) in which the defendant might protect himself by proving that the bird had been killed before the prohibited time, or in a state in which the killing was not prohibited.

Exceptions sustained.

NOTE BY THE Reporter. -In Magner v. People, Illinois Supreme Court, Feb. 1881, the contrary doctrine was held in respect to game unlawfully killed in the other State. The court said:

"But it is argued, this cannot be the correct construction, because such a prohibition does not tend to protect the game of this State. To this there seems to be two answers. First, the language is clear, and free of ambiguity, and in such case there is no room for construction. The language must be held to mean just what it says. Second. It cannot be said to be within judicial cognizance that such a prohibition does not tend to protect the game of this State. It being conceded, as it tacitly is by the argument, that permitting

Commonwealth v. Hartwell.

the intrapping, netting, insnaring, etc., of wild fowl, birds, etc., during certain seasons of the year, tends to the protection of wild fowl, birds, etc., we think it obvious that the prohibition of all possession and sales of such wild fowls or birds, during the prohibited seasons, would tend to their protection, in excluding the opportunity for the evasion of such law by clandestinely taking them beyond the State, and afterward bringing them into the State for sale, or by other subterfuges and evasions.

"It is quite true that the mere act of allowing a quail netted in Kansas to be sold here does not injure, or in anywise affect the game here - but a law which renders all sales and all possession unlawful, will more certainly prevent any possession or any sale of the game within the State, than will a law allowing possession and sales here of the game taken in other States. This is but one among many instances to be found in the law, where acts which in and of themselves alone, are harmless enough, but which are condemned because of the facility they otherwise offer for a cover or disguise for the doing of that which is harmful.

"A similar objection to the construction of the act, it seems, was raised in Whitehead v. Smithers, 2 C. P. D. 553; 21 Moak, 458, but Lord COLERIDGE, C. J., said: 'I am of opinion that that argument is not well founded. It is said it would be a strong thing for the legislature of the United Kingdom to interfere with the rights of foreigners to kill birds. But it may well be that the true and only mode of protecting British wild fowl from indiscrim. inate slaughter, as well as of protecting other British interests, is by interfering indirectly with the proceedings of foreign persons. The object is to prevent British wild fowl from being improperly killed and sold under pretense of their being imported from abroad.'

"In that case the wild fowl was shown to have been one of a consignment of dead plovers received by a poulterer from Holland, and it was held that its sale was prohibited by general language like that of the section under consideration, prohibiting all sales of such fowls.

"In Phelps v. Racey, 60 N. Y. 10; s. c., 19 Am. Rep. 140, the language of the statute was substantially the same as that of the 6th section. The defense there was that the bird -8 quail - had been killed in the proper season, but had been kept by a process for preserving game until after the season expired, and then offered for sale. The court said: "The penalty is denounced against the selling or possession after that time, irrespective of the time or place of killing. The additional fact alleged that the defendant had invented a process of keeping game from one lawful period to another, is not provided for in the act, and is immaterial.'" Compare State v. Saunders, 19 Kans. 127; s. c., 27 Am. Rep. 98,

COMMONWEALTH V. HARTWELL.

(128 Mass. 415.)

Criminal law - homicide by negligence · · indictment — proof.

On an indictment against a railway conductor for manslaughter, caused by his criminal negligence in misplacing a switch and omitting to notify it to an approaching train, and alleging that he knew the approach of the other train, the fact of his knowledge must be proved as laid.

\ONVICTION of manslaughter. The opinion states the case.

JONVICTION

Commonwealth v. Hartwell.

D. S. Kichardson and S. Hoar, for defendant.

G. Marston, attorney-general, and F. H. Gillett, assistant attorney-general, for Commonwealth.

ENDICOTT, J. This is an indictment for manslaughter, in which the defendant is charged with negligence and omission of duty, as conductor of a freight train, whereby another train was thrown from the track, and a passenger thereon was killed.

The indictment recites that the defendant was a conductor in the employment of the Old Colony Railroad Company, and was, on October 8, 1878, in charge of a freight train, on the road of the company, which had been run over the outward track from Boston to the Wollaston station in Quincy under his direction; that the company had established for the guidance of its servants proper and sufficient rules and regulations, having relation to the crossing of the inward track, over which trains passed on their way to Boston, by locomotive engines and trains using or running upon the outward track, which rules and regulations were in force at the time and well known to the defendant; and that it became and was his duty not to conduct his locomotive engine from the outward track across the inward track, without first sending forward the proper signal to warn the driver of any train approaching on the inward track that he could not safely pass without stopping.

The indictment then charges as follows: "Yet the said Hartwell, well knowing the premises, and well knowing that a certain train, to wit, a train consisting of a certain other locomotive steamengine, and divers, to wit, twenty cars attached thereto and drawn thereby, was then and there lawfully travelling and being propelled on and along the said inward track of said railroad, and was then due and about to arrive at that part of said railroad in Quincy aforesaid, near the Wollaston station aforesaid, but disregarding his duty in that behalf did" at the same time and place "willfully and feloniously, and in a wanton, negligent and improper manner, and contrary to his duty in that behalf, and while the last-mentioned train was then and there due and about to arrive as aforesaid, conduct and drive, and suffer, permit and direct to be conducted and driven," his own locomotive engine across the inward track to a side track, and attached to it certain freight cars, and again crossed the inward track to the outward track, "thereby

Commonwealth v. Hartwell.

leaving the switch thrown out of line, so as to disconnect the rails upon the inward track, without first sending forward any signal whatever to warn the driver of said approaching train so due as aforesaid," in accordance with the rules and regulations of the company.

The indictment, after again stating that this train of twenty cars was then due, and that the defendant neglected to send forward the required signal, proceeds to charge in substance, that by means of the premises and the felonious neglect and omission of the defendant, the driver of the approaching train, then due at the Wollaston station, was induced to believe that the inward track was unbroken and unobstructed, and that he might safely pass; that he did not stop, but continued on his course, and by reason of the misplacement of the switch, the train was thrown from the track, and á passenger therein named Patrick Reagan was killed.

It appeared in evidence that the train thus thrown from the track was an extra train, and that the defendant had a written notice from the superintendent of the company that it would run on that day. The notice contained the time-table of the train, and it was due in Boston soon after five o'clock in the afternoon. The defendant's train left Boston on its regular time, at half-past six, more than an hour after the extra train was due in Boston, and reached Wollaston station soon after seven. The extra train was then, according to the time-table contained in the notice received by the defendant, more than two hours behind time. The defendant while at the Wollaston station, in obedience to directions from the freight agent, took the freight cars from the side track, crossing the inward track, as set forth in the indictment, without sending forward the required signal to warn any train approaching on that track. No evidence was introduced by the government that the defendant knew that the extra train was then due and about to arrive at the Wollaston station. On the contrary, it appeared by the evidence that he then understood it was in Boston, and stated to his engineer before he left Boston that it had arrived.

Among other instructions requested, the defendant asked the ecurt to rule, that the averment that Hartwell well knew that a certain train" was then and there lawfully travelling and being propelled on and along the said inward track of said railroad, and was then due and about to arrive at that part of said railroad in Quincy aforesaid near the Wollaston station aforesaid," was r VOL. XXXV-50

Commonwealth v. Hartwell.

material averment, which must be proved by the Commonwealth, and there was no evidence in the case to support that averment.

The court declined to give this ruling; and it is contended by the government that this averment need not be proved as laid, but can be rejected as surplusage. But we are of opinion that the ruling should have been given, and that the defendant's exceptions on this point must be sustained.

The precise question is whether this averment can be rejected as mero surplusage, or whether it is of such a character as not only to be descriptive of the negligence charged, but in its connection with the other parts of the indictment, is notice to the defendant of the exact charge which he has to meet.

The defendant is charged with the crime of manslaughter; and the specific nature of the charge is, that by reason of his culpable negligence and omission to perform his duty, Patrick Reagan was killed. His guilt therefore depends solely upon the question whether he was negligent, and failed to perform his duty upon a given occasion, and under such circumstances that he may be held criminally responsible for the death. He is entitled, therefore, to have the nature, character and extent of the negligence, which connects him with the death of Reagan, fully and plainly, substantially and formally described to him in the indictment.

This the indictment does or attempts to do, and charges in substance, that well knowing the rules of the road, and his duty in that regard, and what signals should be given when an engine or train from the outward track crosses the inward track, and also well knowing that this particular train was then due and about to arrive upon that track, he neglected to give the required signal, and the death of Reagan was the result. The pleader has made the knowledge of the defendant that the express train was due, as well as his knowledge of the rules and his duty in regard to them, an essential and material portion of the description of the acts and conduct of the defendant which go to constitute the negligence charged; and the negligence charged is not merely that he failed to give the signal required to notify any approaching train, but that he failed to give it when he knew there was an instant and pressing necessity for so doing, because this particular train was then due at that point.

This was not an impertinent averment, or foreign or inapplicable to the charge, because proof of such knowledge would establish the