Choctaw, Oklahoma & Gulf Railroad Company v. State

• Decision Date: 13 May 1905
• Parties: CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. STATE
• Court: Arkansas Supreme Court

87 S.W. 631

75 Ark. 369

CHOCTAW, OKLAHOMA & GULF RAILROAD COMPANY v. STATE

Supreme Court of Arkansas

May 13, 1905

Appeal from Sebastian Circuit Court, Greenwood District STYLES T ROWE, Judge.

Reversed.

Reversed and remanded.

E. B Peirce and T. S. Buzbee, for appellant.

Defendant's notion to quash summons and its demurrer to the indictment should have been sustained. Failure of a railroad company to sound a whistle or ring a bell at a crossing is not a public offense. 55 Ark. 200; 56 Ark. 166; 63 Ark. 134; 68 Ark. 561. The grand jury had no authority to indict. 63 Ark. 140; Kirby's Dig. § 2197. Defendant's motion to make the indictments more specific should have been sustained. 59 Ark. 169; 69 Ark. 363; 66 Ark. 278, 281; 85 S.W. 85; Kirby's Dig. §§ 6090, 6091, 6129; 32 Ark. 43; 27 Ark. 369; 29 Ark. 452. After answer, no pleading can be amended, except by leave of court; and the notice served on defendant could not be considered in the case. Kirby's Dig. § 6143; 8 Ind. 178; 1 Ark. 165; 24 Ark. 281. It was therefore error to allow the notice to be introduced in evidence. Kirby's Dig. § 6087. The court erred in allowing Jesse A. Harp to testify that he knew from general reputation that defendant was a corporation, and also in refusing to give the first instruction prayed by appellant. 7 Am. & Eng. Enc. Law (2d Ed.), 661; 75 S.W. 929. Kirby's Dig. § 6595 is a penal statute, and should be strictly construed. 43 Ark. 415; 38 Ark. 519; 40 Ark. 97; 67 Ark. 357. The court erred in its first instruction.

Robert L. Rogers, Attorney General, for appellee.

While under the rule in 74 Ark. 159, the indictments were insufficient, the service on the attorney for defendant of the notices stating what would be the evidence in each case properly put it on notice of the case it had to meet under each indictment, and accomplished the same purpose as though the motion had been sustained to make more specific and complied with. 66 Ark. 281; 59 Ark. 169; Pom. Pem. & Rem. Rights, § 554; Kirby's Dig. § 6140.

BATTLE, J. HILL, C. J., did not participate.

OPINION

BATTLE, J.

The following complaint, in the form of an indictment, was filed in this action:

"The grand jury of Sebastian County for the Greenwood District thereof, in the name and by the authority of the State of Arkansas, accuse the defendant, Choctaw, Oklahoma & Gulf Railroad Company, of the crime of failing to ring bell or sound whistle at public road crossing, committed as follows, towit: The said defendant, a corporation owning and operating a line of railroad running through the Greenwood District of Sebastian County, Ark., in the county and district aforesaid, on the 4th day of May, 1902, did unlawfully fail and neglect to ring the bell or sound the whistle on a certain engine and locomotive within eighty rods of the crossing of the railroad track of said railroad company and the Booneville and Texas public road, in Road District No. 11, and unlawfully failed and neglected to keep said bell ringing or whistle sounding until said engine or locomotive then and there crossed said public road, the said engine and locomotive being then and there run by said railroad company on the tracks of said railroad company, against the peace and dignity of the State of Arkansas.

BEN CRAVENS,

"Prosecuting Attorney Twelfth Judicial District."

The defendant filed the following motion: "Comes the defendant, Choctaw, Oklahoma & Gulf Railroad Company, and represents to the court that on the day mentioned in the indictment the defendant operated many trains over its line of railroad through the Greenwood District of Sebastian County, some of which trains were passenger trains and some freight trains, some going east and some west; that from the allegations of the indictment the defendant is unable to determine which particular train is referred to; that the defendant cannot defend this suit without greatly impairing its service and at great expense unless plaintiff be required to set out specifically which of its trains committed the alleged offense. Wherefore, the premises considered, the defendant prays the court to require the plaintiff to make its indictment more definite and certain in this: That the plaintiff shall allege the course and character of the train, the hour of the day and the number of the train by which the defendant operates the same, and to set out such other facts as will enable the defendant to definitely ascertain the particular train referred to in the indictment; and if the plaintiff fails to amend the indictment in this respect, defendant moves the court to dismiss the same."

After the filing of this motion, and before it was disposed of, and on the same day the attorney of the plaintiff delivered to the defendant the following notice:

"To the above named defendant: You are hereby notified that in the above entitled cases, being indictments numbered 154, 155, 168, 169, 170, 171 and 172, the proof relied upon by the State to make out said cases will be as follows: * * *

"Seventh. In indictment No. 154, the date is May 4, 1902, the hour about 4 o'clock p. m., the train a freight train and going west."

The indictment (complaint) in this case was numbered 154.

The court overruled the motion; and a trial followed, which resulted in a judgment in favor of the plaintiff for $ 200.

We have...