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town in Hempstead county, Ark.; that de After the evidence was concluded, the fendant was an incorporated railway, and a court declared the law to be as follows: "(1) common carrier of passengers and freight; That if at the time of the application of the that defendant's railway extended from Tex- | plaintiff to defendant to stop the train menarkana, through Fulton, to Little Rock, Ark.; tioned in complaint at Fulton, Ark., the dethat certain trains were operated on said rail- fendant had all the necessary switches and way, passing north and south through Ful- sidetracks at the town for the use and conton, known as the “Cannon-Ball Trains;" venience in the stopping of the trains of the that respondent had all the switches and defendant, then it was not necessary to tensidetracks in said town of Fulton necessary der the reasonable expenses of grading a for its use and convenience in the stopping switch or sidetrack at said town, required of its trains, freight and passenger, and a by section 5501, Mansf. Dig., before the plaincommodious depot building for the use and tiff would be entitled to insist upon the stopcomfort of its passengers; that respondent | ping of the trains prayed for. (2) That if caused said cannon-ball trains to run rapidly the application required to be made under through said town of Fulton without stop- section 5300, Mansf. Dig., was made in writping, to the great annoyance and incon- | ing to W. T. Kelly, superintendent of devenience of plaintiff and the other citizens fendant's road from Poplar Bluff to Texof said town; that plaintiff and more than arkana, while the president of the company 50 citizens of said town of Fulton had ap- and the general superintendent were nonplied in writing to Jay Gould, president, and residents, and absent from the state, that to W. T. Kelly, superintendent, of defend- such application is sufficient, and a suffiant's corporation, and asked that said can- cient compliance with said section. (3) That non-ball trains be stopped at said town of under section 5500, Mansf. Dig., if the eviFulton as provided for under the statute; dence shows that Fulton was an incorporated that said application had been refused. town in this state, situated on the line of

defendant's road, and that 50 of its citizens Demurrer.

made application to defendant, as required This petition was demurred to upon the fol- under said section, asking it to stop its trains lowing grounds: (1) Because it failed to which are mentioned in the complaint at such set up facts sufficient to constitute a good town, then it became the duty of the comcause of action against this defendant. (2) pany to comply with the requirement of the Because it failed to set up facts sufficient, statute, and stop the train. (4) That statute under the statutes of the state of Arkansas, is not an interference with section 8, art. 1, to entitle him to a writ of mandamus as of the constitution of the United States, prayed. (3) Because the plaintiff had no which provides that congress shall have legal capacity to institute this suit. (4) Be- power to regulate the commerce among the cause there was no equity in the petition en- several states. The legislature of the state titling plaintiff to the relief sought. After may, in the exercise of its police power, pass argument, this demurrer was overruled and any law of a police character regulating the all proper exceptions duly saved. The ap- operation of railroad trains which it conpellant answered, and, among other things, siders necessary to protect the comfort, constated that two of its passenger trains and venience, and safety of its trains, notwithone local freight train, carrying passengers, standing such regulation may affect intergoing south, and the same number and kind state trains. Upon the facts of this case, of trains going north, stopped at the town of the court declares the law against the deFulton each day,-one passenger at 7:22 a. fendant, and mandamus is granted.” The m., going south; one passenger at 7:55 p. defendant at the time objected separately to m., going south; one passenger at 7:55 p. each of the declarations of law as made by m., going north; one passenger at 8:32 p. the court, and also excepted to the finding of m., going north. That the “Cannon Ball” the court upon the facts in the case, and going south passes Fulton at 12:45 p. m., also in rendering a judgment in favor of the and does not stop. That the Texas special plaintiff, and in granting said mandamus. A passes Fulton at 3:01 p. m., and does not motion for a new trial was then filed, overstop. That these trains run to and from ruled, exceptions saved, and an appeal St. Louis and Memphis. That the “Cannon prayed. Ball" was a fast train, carrying United States

Assignment of Errors. mail and passengers, and was under the necessity of making fast time to make proper The following errors were assigned in the connection with trains at Texarkana and motion for a new trial: (1) Because the findSt. Louis; and that the granting of the peti. | ing of the court was contrary to the law; (2) tion would interfere with the rapid transpor- because it was contrary to the evidence; (3) tation of interstate passengers, and the rapid because it was contrary to both the law and transfer and delivery of the United States the evidence; (4) because the court erred in mails. That said train stopped at all places refusing to declare the law as set out in there another road crossed or connected with prayers 1, 2, 3, 4, and 5, as asked by defendappellant's road, etc.

i ant; (5) because the court erred in declaring

the law to be as set out in prayers 1, 2, 3, or sidetrack at said town of Fulton for the and 4, as given by the court upon its own use of said company, in accordance with the motion; (6) because the court erred in de- requirement of section 5501, Mansf. Dig. claring the law and facts in favor of plain- There does not appear to be any ambiguity tiff, and in granting the writ of mandamus. or obscurity in this section of the statute. (7) Because the court has no jurisdiction to Where a statute is unambiguous, as a gengrant plaintiff's petition under the constitu- eral rule but little room is left for constraction and laws of the United States.

tion. In the case of Sturges v. CrowninThe petition for mandamus in this case shield, 4 Wheat. 202, it is said: “Although was filed under sections 5500-5502, Mansf. the spirit of the instrument, especially of the Dig., which read as follows:

constitution, is to be respected not less than "Sec. 5500. When not less than fifty citi- its letter, yet the spirit is to be collected zens of any incorporated town in the state, chiefly from its words. It would be dangersituated on the line of any railroad *

ous in the extreme to infer from extrinsic shall make an application in writing to the circumstances that a case for which the president of said railroad, etc. * it words of the instrument expressly provided shall be the duty of such railroad company shall be exempt from its operation. Where to stop all of its trains, freight or passenger, words conflict with each other, and would at some point within the corporate limits of be inconsistent with each other unless the such town most convenient, etc.

natural and common import of the words be “Sec. 5501. Before any town mayor can varied, construction becomes necessary, and insist upon, and compel the stoppage of to depart from the obvious meaning of the trains as in this act provided, the corporate words is justifiable. Yet in no case the plain authorities of such town shall provide and meaning of a provision, not contradicted by make tender to such railroad companies, suf- any other provision in the same instrument, ficient means to defray the reasonable ex- is to be disregarded because we believe the penses of grading a switch or side track at framers of that instrument could not intend such place of stopping for the use of such what they say. It must be one in which the railroad company.

obscurity and injustice of applying the provi. "Sec. 5502. The writ of mandamus may is- sion to the case would be so monstrous that sue at the suit of any citizen of such town, all mankind would, without hesitation, unite upon the failure of any such railroad com- in rejecting the application." Quoted in pany to stop its trains as in this act provid- Suth. St. Const. pp. 315, 316, § 238. Mr. ed, and to compel such company to comply Sutherland says: “One who contends that a with the requirements of this act."

section of an act must not be read literally The petition failed to state that the cor- must be able to show one of two things,porate authorities of the town of Fulton "had either that there is some other section which provided and had made tender to the defend. cuts down or expands its meaning, or else ant railway company, means sufficient to de- that the section itself is repugnant to the fray the reasonable expenses of grading a general provision. The question for the court switch or side track at such place of stop- is, what did the legislature really intend to ping for the use of such defendant. The direct? And this intention must be sought circuit judge found as a fact “that at the in the whole of the act, taken together, and time of the application of the plaintiff to other acts in pari materia. If the language defendant to stop the trains mentioned in be plain, unambiguous, and uncontrollable by the complaint at Fulton, Ark., the defendant other parts of the act, or other acts or laws had all the necessary switches at the town upon the same subject, the court cannot give for its use and convenience in the stopping ita different meaning to subserve public policy of the train of defendant, and that, therefore, or to maintain its constitutionality. The it was not necessary for plaintiff or the town limited meaning of the word will be disreof Fulton to tender to the company suffi- garded when it is obvious from the act itself cient means to defray the reasonable expense that the use of the word was a clerical error, of grading a switch or sidetrack at said and that the legislature intended it in a diftown, as required by section 5501, before erent sense from its common meaning. the plaintiff would be entitled to insist upon Where that which is directed to be done is the stopping of the trains prayed for.” The within the sphere of legislation, and the issues upon the demurrer and upon the find- terms used clearly express the intent, all ing of facts by the court are the same, and reasoning derived from the supposed inconmay be considered together.

venience, or even absurdity, of the result, is

out of place. It is not the province of the Opinion,

courts to supervise legislation, and keep it The only question we have considered and within the bounds of propriety and common determined in this case is whether this suit sense." Id. $ 238. Where the statute makes can be maintained, the citizens of Fulton no exceptions, the courts can make none. having failed to provide and tender to the It might be very just and reasonable and railway company means sufficient to defray right that the statute should make an exthe reasonable expenses of grading a switch ception, such as is contended it does make,

or ought to be construed to make, but this was within the power of the legislature, "and its exercise of the power cannot be restrained or varied by the courts to subserve" convenience, to relieve from hardships or from requirements that seem unreasonable, or even absurd, where the language is plain and unambiguous. Sims v. Cumby, 53 Ark. 421, 14 S. W. 623; McGaughey v. Brown, 46 Ark. 37; Railway Co. v. Lambert, 42 Ark. 122; Railroad Co. v. Carlley, 39 Ark. 246. The circuit court erred in awarding the mandamus, for the reason that no tender of amount necessary to pay expenses of grading switch had been made before suit, as required by the statute, Reversed and dismissed.

GREEN v. STATE. (Supreme Court of Arkansas. June 9, 1894.) HOMICIDE-INSANITY AS a DefenSE-EVIDENCE.

On a trial for murder,-the defense being insanity, and defendant's evidence on that point being confined to the 10 years prior to the homicide,-it was error to allow the state to show that, 20 years before, she abandoned her husband and children, and went away with deceased, as not only was the evidence immaterial and prejudicial, but evidence as to sanity should be confined to the period covered by defendant.

Appeal from circuit court, White county; Grant Green, Jr., Judge.

Sarah Green was convicted of murder, and appeals. Reversed.

Sarah Green, pro se. James P. Clarke, Atty Gen., and Chas. T. Coleman, for the State.

BATTLE, J. (dissenting). I do not concur with the court in the interpretation of the statute in question. It requires railroad companies, on the application of 50 citizens of any incorporaten town to the proper offcer, “to stop all trains-freight or passenger -at some point within the corporate limits of such town most convenient for the reception and handling and discharge of freight, and the reception and discharge of passengers, and the reception and delivery of the mails, and most convenient to accommodate the business of such town;" and then adds: "Provided, that before any town may or can insist upon and compel the stoppage of trains, as in this act provided, the corporate authorities of such town shall provide and make tender to such railroad companies sufficient means to defray the reasonable expenses of grading a switch or side track at such place of stopping for the use of such railroad company.” Acts 1873, pp. 169, 170. The object of this proviso was, I think, to relieve the railroad companies of any additional expense of grading a switch or sidetrack to the convenient place in the town where they are required to stop their trains. Before a town can compel the stoppage of trains, it must tender sufficient means to defray the reasonable expenses of grading, not laying, a switch or sidetrack. If there is no grading to be done, no expense on that account can be incurred, and none, certainly, can be tendered or is required. The expense of laying or making the track which constitutes the switch, except grading, is imposed on the railroad companies.

In this case it is alleged, and not denied, that the railroad company has already constructed and in operation all the switches and sidetracks necessary for the stopping of trains. No grading is necessary for that purpose. It would be folly to require a tender of means to defray an expense which does not and will not exist, in the event the petition of appellee be granted.

WOOD, J. Appellant was charged with murder in the first degree, convicted of murder in the second degree, and sentenced tothe penitentiary for five years. The defense was insanity. Deceased was the husband of appellant, and, if she was sane, the crime was most unnatural and diabolical.

As we would not disturb the verdict from the evidence presented by this record, no good purpose could be subserved by setting out the details of the shocking transaction. If the appellant was insane, the proof tended to show that her insanity was superinduced by the cruel and inhuman treatment of deceased to appellant and their children. The evidence on the question of insanity, on the part of the defense was confined to a period of eight or ten years before the murder, and much proof was had as to her eccentricities and strange conduct during all that time. Suffice it to say that she seemed to have been brooding over family troubles growing out of the ill treatment of herself and children by her husband, and her manner and conduct were so strange and unnatural as to impress many of her neighbors, and others who saw her, that she was in. sane. Others were not so impressed, but thought her sane. Experts pronounced such conduct as disclosed by the record as that: of an insane person. The verdict of the jury on all these controverted questions must be taken as conclusive, since there was evidence legally sufficient to support it. Williams v. State, 50 Ark. 511, 9 S. W. 5. Appellant insists upon reversal here for only three of the sixteen assignments of error in the motion for new trial: (1) Because the court erred in refusing to give instructions numbered 2 and 4, as asked for by the defendant. (2) Because the court erred in permitting the state to prove by David Summers, J. A. Alexander, and G. D. Painter, the life and relations of the defendant some 20 years ago, in the state of Tennessee, and that she had separated from a former hus

WOOD, J., concurs with me.

band in said state. (3) Because the court erred in permitting the state to prove by M. H. Patterson statements of the deceased, G. N. Green, made to him on Monday morning after he had been injured (on Friday night), which statements were in part made in the absence of the defendant.

1. There was no error in refusing to give the prayers asked. This court, through Justice Hemingway, in the cases of Bolling V. State, 54 Ark. 588, 16 S. W. 658, and Smith v. State, 55 Ark. 259, 18 S. W. 237, treated the questions presented by these requests exhaustively, and announced the law applicable in such cases. We find nothing new calling for our discussion. The law de clared by the court in this case is in harmony with the doctrine of those cases. The rejected prayers, if applicable at all to the facts proved, were covered by the seventh given at the instance of the state, and the third given on behalf of defendant.

2. David R. Summers, over the objection of the defendant, testified that he knew the defendant about 20 years ago, in Rutherford county, Tenn.; that she was then married to one Phelps, and had three children; that Phelps moved to Nashville, but the defendant soon returned with the children; that, shortly after this, she and the deceased, Green, disappeared, and witness carried her children to Phelps, at Nashville. The testimony of the other witnesses objected to was substantially the same as this. In Clinton v. Estes, 20 Ark. 219, where the question under consideration was the mental capacity of a party to make a contract at a particular time, Chief Justice English said: "To determine the mental capacity of an individual at a particular time, it is often necessary to inquire into the state of his health, his appearance, conduct, habits, etc., for some time before and after the period in question. No absolute rule, limiting the extent of the examination to fixed periods, can therefore safely be laid down, in consequence of the variety of cases which occur.” This is applicable also to criminal cases. Where the issue is insanity the examination of witnesses may take the widest range, going into the personal history of the defendant for any number of years prior to the commission of the act for which he is accused, showing temper, character, disposition, etc. And if it appears that the insanity alleged is hereditary the inquiry may extend even beyond, -to the ancestors and collateral relations of the defendant, if so near in blood as to indicate that the insanity of which proof is made may have been transmitted. Busw. Insan. p. 249; People v. Garbutt, 17 Mich. 10; U. S. v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15,382. But this broad statement of the rule is, of course, subject to the salutary limitation which must govern in the production of all evidence, i. e. “the evidence must teņd to prove the issue.” 1 Greenl. Ev. $ 51. Had the evidence on the question of insanity

covered the whole of defendant's life, it would have been perfectly legitimate for the state, in rebuttal, to have gone over the same ground, and to have shown any acts tending to prove sanity. But the inquiry on behalf of defendant was directed only to a period of eight or ten years antedating the killing. It is not shown that defendant gave any evidences of insanity before that time. Sanity is the normal condition, and will be presumed until the contrary is proved. The only effect of this testimony, so far as the question of insanity is concerned, was to show that defendant was sane 20 years before, at a time when the law itself presumed her sanity. Whart. & S. Med. Jur. $ 247; Sayres v. Com. 88 Pa. St. 291; U. S. v. Holmes, 1 Cliff. 98, Fed. Cas. No. 15,382, and authorities there cited. The testimony of these witnesses did not even throw a glimmer of light upon the condition of defendant's mind at the time of the killing, and was wholly disconnected with any circumstance that did. It was therefore irrelevant, and should not have been admitted for any purpose. If the defendant was sane, the isolated fact that, 20 years before, she had abandoned her husband and three children for a liaison and marriage with another man, could afford no explanation of her conduct in killing that man. What was the most probable and natural effect of such testimony with the jury? It revealed a character wanting in virtue, oblivious to social refinements, and forgetful of the obligations of the marital state. Evidence of such moral obliquity could only tend to degrade the defendant be fore the jury, and prejudice their minds against her. We cannot say, with this evidence before the jury, that the legitimate proof received that impartial consideration to which the accused was entitled.

The statements of deceased to the sheriff were not prejudicial to appellant. For the errors indicated the judgment is reversed. and the cause remanded.

STURDIVANT v. STATE. (Supreme Court of Arkansas. June 9, 1894.)


In the prosecution of a father for assault. ing one with whom his son was fighting, evidence of words passed between the son and the prosecutor before the fight, even if relevant, is not so evidently material as that its exclusion can be deemed prejudicial to defendant.

Appeal from circuit court, Howard county; Will P. Feazell, Judge.

J. S. Sturdivant, convicted of aggravated assault, appeals. Affirmed.

J. D. Conway and Wm. McGreene, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State.

RIDDICK, J. The facts in this case are as follows: One Ike Deloney, a justice of the

peace, was trying a case in which Bud Sturdi- that the assault was made without any convant, a son of appellant, was defendant, and siderable provocation, and was of such a naBuck Sturdivant, another son of appellant, ture as justified the jury in finding that the was a witness. While Buck Sturdivant was defendant was guilty of an aggravated astestifying, he made some statement that was sault. It was for the jury to judge of the offensive to Deloney, and was told by De- | weight of the evidence, and the credibility of loney to shut his mouth; that he (Deloney) the witnesses. It appears that the evidence would not allow his word disputed. Sturdi- was sufficient to sustain the verdict. Findvant, in reply, told Deloney to shut his own ing no prejudicial error, the judgment of the mouth. Thereupon, they began to fight. The circuit court is affirmed. defendant, who had been placed under the rule, as a witness, and was about fifteen yards away, seeing the disturbance, and hearing some one say, “Deloney is cutting Buck

DAMRON v. STATE. Sturdivant," ran up to Deloney, and stabbed him with a knife. The defendant was in

(Court of Criminal Appeals of Texas. June 16, dicted for an assault with intent to kill, and

1894.) convicted of an aggravated assault. A judg- CRIMINAL LAW-CONTINUANCE – HORSE STEALING

-INDICTMENT. ment for a fine of $50 and one hour in jail was rendered against him.

1. Defendant at the trial, on being asked

if he was ready said that he desired a continDuring the progress of the trial, the court, uance for an absent witness. The defendant on motion of the attorney for the state, ex- not having counsel, the court requested an atcluded from the jury the right to consider

torney to consult with him as to whether there

was reasonable ground for the continuance. anything that was said during the trial of

The attorney reported that the defendant was Bud Sturdivant, between Buck Sturdivant as ready as he could ever be, whereupon de and witness Ike Deloney, before the fight fendant announced ready for trial. Held, that commenced. Defendant excepted to this rul

a new trial on the ground that defendant was

deprived of the assistance of counsel and of ing of the court, and the question here is

witnesses in his behalf was properly refused, whether the ruling of the court was a reversi- the court having had no notice of the efforts ble error or not. Conceding that these words

of defendant's friends to secure counsel, and it

also not being stated what fact the witness that passed between Buck Sturdivant and

would have proved. Deloney before the fight began were so close 2. An indictment for horse stealing need not ly connected with the subsequent fight and allege that the house was “corporeal personal stabbing as to constitute part of the res ges

property," as the court will take notice of the

fact. tae, and were therefore admissible in evidence, it does not necessar:ly follow that the Appeal from district court, Hill county; action of the court in excluding them will jus. J. M. Hall, Judge. tify this court in reversing the judgment. Billy Damron was convicted of horse stealThis court will only reverse a judgment of ing, and appeals. Affirmed. the trial court for errors that are prejudicial to the rights of the appellant. Fitzpatrick v. HURT, P. J. This is a conviction for theft State, 37 Ark. 238. The rule followed by ap- of a horse. When the appellant was called pellate courts generally is not to reverse for on to answer whether he was ready for trial, harmless errors. Elliott, App. Proc. 632. It he stated that he was not; that he desired appears, we think, very plainly, that these a witness who lived at Velasco. He was words, whether excluded or admitted, could then asked if he had counsel. He replied have had no proper influence on the verdict that he had not; whereupon the court reof the jury. They were not spoken in the quested Mr. Smith, an attorney, to advise presence of defendant; and, even if they had with him as to whether there was a reasonbeen, they furnished no excuse or justification able ground for a continuance or postponefor the assault upon Deloney. The defend- ment of the cause. After consulting with ant did not testify, but some of the witnesses the defendant, Mr. Smith reported to the court testified that after the fight was over he said that defendant was as ready for trial then to them that he was sorry he had cut De-as he ever could be by the presence of the loney, and "would not have done it if he had witness who lived at Velasco, whereupon denot thought he was cutting Buck.” This evi- fendant announced ready for trial. Being dence, and the testimony of the witnesses convicted, appellant brings forward a lengthy that one of the bystanders had called out to motion for new trial. appellant, “Deloney is cutting Buck Sturdi- 1. That he had been deprived of the assistvant all to pieces," and all the other circum- ance of counsel; entering into an elaborate stances that could have furnished any legiti- statement of the efforts to obtain counsel, mate excuse or justification for the assault and the reasons for failing to do so. When on Deloney by the appellant, or that could asked to announce, nothing whatever was bave been taken in mitigation of the offense, said to the court about these matters. The were allowed to go to the jury. There was court's attention was not called to his condialso evidence tending to show that Deloney tion, physical or mental, nor to what he or was stabbed in the back by appellant, and his friends had done to obtain counsel for his

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