Page images
PDF
EPUB

town in Hempstead county, Ark.; that defendant was an incorporated railway, and a common carrier of passengers and freight; that defendant's railway extended from Texarkana, through Fulton, to Little Rock, Ark.; that certain trains were operated on said railway, passing north and south through Fulton, known as the "Cannon-Ball Trains;" that respondent had all the switches and sidetracks in said town of Fulton necessary for its use and convenience in the stopping of its trains, freight and passenger, and a commodious depot building for the use and comfort of its passengers; that respondent | caused said cannon-ball trains to run rapidly through said town of Fulton without stopping, to the great annoyance and inconvenience of plaintiff and the other citizens of said town; that plaintiff and more than 50 citizens of said town of Fulton had applied in writing to Jay Gould, president, and to W. T. Kelly, superintendent, of defendant's corporation, and asked that said cannon-ball trains be stopped at said town of Fulton as provided for under the statute; that said application had been refused.

Demurrer.

This petition was demurred to upon the following grounds: (1) Because it failed to set up facts sufficient to constitute a good cause of action against this defendant. (2) Because it failed to set up facts sufficient, under the statutes of the state of Arkansas, to entitle him to a writ of mandamus as prayed. (3) Because the plaintiff had no legal capacity to institute this suit. (4) Because there was no equity in the petition entitling plaintiff to the relief sought. After argument, this demurrer was overruled and all proper exceptions duly saved. The appellant answered, and, among other things, stated that two of its passenger trains and one local freight train, carrying passengers, going south, and the same number and kind of trains going north, stopped at the town of Fulton each day,-one passenger at 7:22 a. m., going south; one passenger at 7:55 p. m., going south; one passenger at 7:55 p. m., going north; one passenger at 8:32 p. m., going north. That the "Cannon Ball" going south passes Fulton at 12:45 p. m., and does not stop. That the Texas special passes Fulton at 3:01 p. m., and does not stop. That these trains run to and from St. Louis and Memphis. That the "Cannon Ball" was a fast train, carrying United States mail and passengers, and was under the necessity of making fast time to make proper connection with trains at Texarkana and St. Louis; and that the granting of the peti tion would interfere with the rapid transportation of interstate passengers, and the rapid transfer and delivery of the United States mails. That said train stopped at all places where another road crossed or connected with appellant's road, etc.

After the evidence was concluded, the court declared the law to be as follows: "(1) That if at the time of the application of the plaintiff to defendant to stop the train mentioned in complaint at Fulton, Ark., the defendant had all the necessary switches and sidetracks at the town for the use and convenience in the stopping of the trains of the defendant, then it was not necessary to tender the reasonable expenses of grading a switch or sidetrack at said town, required by section 5501, Mansf. Dig., before the plaintiff would be entitled to insist upon the stopping of the trains prayed for. (2) That if the application required to be made under section 5500, Mansf. Dig., was made in writing to W. T. Kelly, superintendent of defendant's road from Poplar Bluff to Texarkana, while the president of the company and the general superintendent were nonresidents, and absent from the state, that such application is sufficient, and a sufficient compliance with said section. (3) That under section 5500, Mansf. Dig., if the evidence shows that Fulton was an incorporated town in this state, situated on the line of defendant's road, and that 50 of its citizens made application to defendant, as required under said section, asking it to stop its trains which are mentioned in the complaint at such town, then it became the duty of the company to comply with the requirement of the statute, and stop the train. (4) That statute is not an interference with section 8, art. 1, of the constitution of the United States, which provides that congress shall have power to regulate the commerce among the several states. The legislature of the state may, in the exercise of its police power, pass any law of a police character regulating the operation of railroad trains which it considers necessary to protect the comfort, convenience, and safety of its trains, notwithstanding such regulation may affect interstate trains. Upon the facts of this case, the court declares the law against the defendant, and mandamus is granted." The defendant at the time objected separately to each of the declarations of law as made by the court, and also excepted to the finding of the court upon the facts in the case, and also in rendering a judgment in favor of the plaintiff, and in granting said mandamus. A motion for a new trial was then filed, overruled, exceptions saved, and an appeal prayed.

Assignment of Errors.

The following errors were assigned in the motion for a new trial: (1) Because the finding of the court was contrary to the law; (2) because it was contrary to the evidence; (3) because it was contrary to both the law and the evidence; (4) because the court erred in refusing to declare the law as set out in prayers 1, 2, 3, 4, and 5, as asked by defendant; (5) because the court erred in declaring

the law to be as set out in prayers 1, 2, 3, and 4, as given by the court upon its own motion; (6) because the court erred in declaring the law and facts in favor of plaintiff, and in granting the writ of mandamus. (7) Because the court has no jurisdiction to grant plaintiff's petition under the constitution and laws of the United States.

The petition for mandamus in this case was filed under sections 5500-5502, Mansf. Dig., which read as follows:

*

"Sec. 5500. When not less than fifty citizens of any incorporated town in the state, situated on the line of any railroad * shall make an application in writing to the president of said railroad, etc. * it shall be the duty of such railroad company to stop all of its trains, freight or passenger, at some point within the corporate limits of such town most convenient, etc.

"Sec. 5501. 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.

"Sec. 5502. The writ of mandamus may issue at the suit of any citizen of such town, upon the failure of any such railroad company to stop its trains as in this act provided, and to compel such company to comply with the requirements of this act."

The

The petition failed to state that the corporate authorities of the town of Fulton "had provided and had made tender to the defendant railway company, means sufficient to defray the reasonable expenses of grading a switch or side track at such place of stopping for the use of" such defendant. circuit judge found as a fact "that at the time of the application of the plaintiff to defendant to stop the trains mentioned in the complaint at Fulton, Ark., the defendant had all the necessary switches at the town for its use and convenience in the stopping of the train of defendant, and that, therefore, it was not necessary for plaintiff or the town of Fulton to tender to the company sufficient means to defray the reasonable expense of grading a switch or sidetrack at said town, as required by section 5501, before the plaintiff would be entitled to insist upon the stopping of the trains prayed for." The issues upon the demurrer and upon the finding of facts by the court are the same, and may be considered together.

Opinion.

The only question we have considered and determined in this case is whether this suit can be maintained, the citizens of Fulton having failed to provide and tender to the railway company means sufficient to defray the reasonable expenses of grading a switch

or sidetrack at said town of Fulton for the use of said company, in accordance with the requirement of section 5501, Mansf. Dig. There does not appear to be any ambiguity or obscurity in this section of the statute. Where a statute is unambiguous, as a general rule but little room is left for constrction. In the case of Sturges v. Crowninshield, 4 Wheat. 202, it is said: "Although the spirit of the instrument, especially of the constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme to infer from extrinsic circumstances that a case for which the words of the instrument expressly provided shall be exempt from its operation. Where words conflict with each other, and would be inconsistent with each other unless the natural and common import of the words be varied, construction becomes necessary, and to depart from the obvious meaning of the words is justifiable. Yet in no case the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded because we believe the framers of that instrument could not intend what they say. It must be one in which the obscurity and injustice of applying the provi sion to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application." Quoted in Suth. St. Const. pp. 315, 316, § 238. Mr. Sutherland says: "One who contends that a section of an act must not be read literally must be able to show one of two things,either that there is some other section which cuts down or expands its meaning, or else that the section itself is repugnant to the general provision. The question for the court is, what did the legislature really intend to direct? And this intention must be sought in the whole of the act, taken together, and other acts in pari materia. If the language be plain, unambiguous, and uncontrollable by other parts of the act, or other acts or laws upon the same subject, the court cannot give it a different meaning to subserve public policy or to maintain its constitutionality. The limited meaning of the word will be disregarded when it is obvious from the act itself that the use of the word was a clerical error, and that the legislature intended it in a diferent sense from its common meaning. Where that which is directed to be done is within the sphere of legislation, and the terms used clearly express the intent, all reasoning derived from the supposed inconvenience, or even absurdity, of the result, is out of place. It is not the province of the courts to supervise legislation, and keep it within the bounds of propriety and common sense." Id. § 238. Where the statute makes no exceptions, the courts can make none. It might be very just and reasonable and right that the statute should make an exception, 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.

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 incorporate town to the proper officer, "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. fore 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.

Be

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., concurs with me.

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.

WOOD, J. Appellant was charged with murder in the first degree, convicted of murder in the second degree, and sentenced to the 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

[ocr errors]

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 tend 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 before 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.) ASSAULT-EVIDENCE-PRIOR CONVERSE.

In the prosecution of a father for assaulting 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 Sturdivant, a son of appellant, was defendant, and Buck Sturdivant, another son of appellant, was a witness. While Buck Sturdivant was testifying, he made some statement that was offensive to Deloney, and was told by Deloney to shut his mouth; that he (Deloney) would not allow his word disputed. Sturdivant, in reply, told Deloney to shut his own mouth. Thereupon, they began to fight. The 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 Sturdivant," ran up to Deloney, and stabbed him with a knife. The defendant was indicted for an assault with intent to kill, and convicted of an aggravated assault. A judgment for a fine of $50 and one hour in jail was rendered against him.

During the progress of the trial, the court, on motion of the attorney for the state, excluded from the jury the right to consider anything that was said during the trial of Bud Sturdivant, between Buck Sturdivant and witness Ike Deloney, before the fight commenced. Defendant excepted to this ruling of the court, and the question here is whether the ruling of the court was a reversible error or not. Conceding that these words that passed between Buck Sturdivant and Deloney before the fight began were so closely connected with the subsequent fight and stabbing as to constitute part of the res gestae, and were therefore admissible in evidence, it does not necessarily follow that the action of the court in excluding them will justify this court in reversing the judgment. This court will only reverse a judgment of the trial court for errors that are prejudicial to the rights of the appellant. Fitzpatrick v. State, 37 Ark. 238. The rule followed by appellate courts generally is not to reverse for harmless errors. Elliott, App. Proc. 632. It appears, we think, very plainly, that these words, whether excluded or admitted, could have had no proper influence on the verdict of the jury. They were not spoken in the presence of defendant; and, even if they had been, they furnished no excuse or justification for the assault upon Deloney. The defendant did not testify, but some of the witnesses testified that after the fight was over he said to them that he was sorry he had cut Deloney, and "would not have done it if he had not thought he was cutting Buck." This evidence, and the testimony of the witnesses that one of the bystanders had called out to appellant, "Deloney is cutting Buck Sturdivant all to pieces," and all the other circumstances that could have furnished any legitimate excuse or justification for the assault on Deloney by the appellant, or that could have been taken in mitigation of the offense, were allowed to go to the jury. There was also evidence tending to show that Deloney was stabbed in the back by appellant, and

[blocks in formation]

CRIMINAL LAW-CONTINUANCE - HORSE STEALING -INDICTMENT.

1. Defendant at the trial, on being asked if he was ready said that he desired a continuance for an absent witness. The defendant not having counsel, the court requested an attorney to consult with him as to whether there was reasonable ground for the continuance. The attorney reported that the defendant was as ready as he could ever be, whereupon defendant announced ready for trial. Held, that a new trial on the ground that defendant was deprived of the assistance of counsel and of witnesses in his behalf was properly refused, the court having had no notice of the efforts of defendant's friends to secure counsel, and it also not being stated what fact the witness would have proved.

2. An indictment for horse stealing need not allege that the house was "corporeal personal property," as the court will take notice of the fact.

Appeal from district court, Hill county; J. M. Hall, Judge.

Billy Damron was convicted of horse stealing, and appeals. Affirmed.

HURT, P. J. This is a conviction for theft of a horse. When the appellant was called on to answer whether he was ready for trial, he stated that he was not; that he desired a witness who lived at Velasco. He was then asked if he had counsel. He replied that he had not; whereupon the court requested Mr. Smith, an attorney, to advise with him as to whether there was a reasonable ground for a continuance or postponement of the cause. After consulting with the defendant, Mr. Smith reported to the court that defendant was as ready for trial then as he ever could be by the presence of the witness who lived at Velasco, whereupon defendant announced ready for trial. Being convicted, appellant brings forward a lengthy motion for new trial.

1. That he had been deprived of the assistance of counsel; entering into an elaborate statement of the efforts to obtain counsel, and the reasons for failing to do so. When asked to announce, nothing whatever was Isaid to the court about these matters. The court's attention was not called to his condition, physical or mental, nor to what he or his friends had done to obtain counsel for his

« PreviousContinue »