Commonwealth v. The Baltimore & O. R. Co.

• Decision Date: 28 February 1908
• Docket Number: 108-1908
• Citation: 35 Pa.Super. 474
• Parties: Commonwealth v. The Baltimore & Ohio Railroad Company, Appellant
• Court: Pennsylvania Superior Court

35 Pa.Super. 474

Commonwealth v. The Baltimore & Ohio Railroad Company, Appellant

No. 108-1908

Superior Court of Pennsylvania

February 28, 1908

Argued October 28, 1907

Appeal by defendant, from judgment of Q. S. Washington Co.-1907, No 231, on verdict of guilty in case of Commonwealth v Baltimore and Ohio R. R. Co.

Indictment for obstructing a highway. Before Taylor, J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty, upon which judgment of sentence was passed.

Errors assigned were in refusing to quash the indictment; in refusing to arrest the judgment; and in passing judgment of sentence upon the verdict.

Norman E. Clark, with him Winfield McIlvaine, for appellant. -- The indictment did not charge a crime under the law: Penna. R. R. Co.'s Case, 213 Pa. 373.

The construction and maintenance of the railroad tracks across the public highway and the running of the trains thereon under the power conferred in the acts of assembly, is not a nuisance: Danville, etc., R. R. Co. v. Com., 73 Pa. 29; Mercer v. R. R. Co., 36 Pa. 99; Struthers v. Ry. Co., 87 Pa. 282; Joyce on Nuisances, 425.

It is not sufficient to charge generally that defendant committed a certain offense, nor will the use of the word " unlawfully" supply the omission of material matter in the description of the offense: 22 Cyc. p. 326; Clark's Criminal Procedure, 156; Lamberton v. State, 11 Ohio, 282; United States v. Cruikshank, 92 U.S. 542.

Our position is that this indictment is so general in its terms that it does not state any offense which will enable the court to pronounce a sentence on the verdict: Seifried v. Com., 101 Pa. 200; Sherban v. Com., 8 Watts, 212; Com. v. Moore, 99 Pa. 570; Com. v. Gallagher, 9 Pa.Super. 100.

Owen C. Underwood, district attorney, with him C. L. V. Acheson, assistant district attorney, for appellee. -- While it is true that the defendant company is authorized to construct and maintain its road over and across public highways and to pass its trains over the same, it is equally true that it cannot do so to the nuisance of the public: Penna. R. R. Co.'s Case, 213 Pa. 373.

Obstructing a public highway so as to incommode public travel is an indictable offense at common law: State v. Yarrell, 12 Ired. 130; State v. Morris and Essex R. R. Co., 3 Zab. 360; Rex v. Russell, 6 East, 427; People v. Cunningham, 1 Denio, 524; Rex v. Jones, 3 Camp. 230; Bush v. Steinman, 1 Bos. & Pul. 404; Com. v. Milliman, 13 S. & R. 403.

It is not necessary that the acts constituting the offense be particularly described with all their circumstances, if it can be distinctly defined without this, and much of the particularity of pleadings comes from an abundant caution rather than from the requirements of the law: Sherban v. Commonwealth, 8 Watts, 212; Com. v. The Commercial Bank, 28 Pa. 391; Election Cases, 65 Pa. 20; Com. v. Keenan, 67 Pa. 203; Com. v. Johnston, 19 Pa.Super. 241; Com. v. White, 24 Pa.Super. 178; Brown v. Com., 78 Pa. 122.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

HEAD, J.

The defendant was tried and convicted in the court below upon a bill of indictment charging, as is alleged, the common-law offense of unlawfully obstructing a public highway. The assignments of error raise no question of the correctness of any ruling admitting or rejecting evidence during the trial; of the sufficiency of the evidence, regarded in its entirety, to establish that offense; nor of the manner in which the learned trial court, in the charge, submitted to the jury the issues of fact raised by the pleadings and evidence.

They do, however, raise the broad question that the bill charges no offense indictable at common law. In the development of the supporting argument, the learned counsel for the appellant contend, first, that the bill itself discloses that the alleged obstruction or nuisance consists solely in the facts that the railroad company has crossed, with its tracks, at grade, a public highway and is operating its cars over such tracks -- both of which acts it is expressly authorized by law to do. Second, that the rights and duties of a railroad company, whose tracks cross a public road, are defined by statute, and hence, for any abuse of those rights or breach of those duties, no matter how the public using the highway may be affected, the remedy to check the abuse or punish the breach, must be founded on the statute.

The reasons why, in ancient times, great precision and nicety were required in the work of the criminal pleader, and, conversely, the reasons why, in modern times, the rules once prevailing have been abrogated, are stated, with great clearness, in the opening sentences of the opinion of Mr. Justice Agnew, in Com. v. Keenan, 67 Pa. 203. They have become familiar to every practitioner and have resulted in the provision, in our criminal procedure act, " that every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the Act of Assembly prohibiting the crime, or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury."

If, therefore, an act, which from time immemorial, has been recognized by the common law and known and understood by the people, as a criminal act, for example, the obstruction of a public highway, be made the subject of indictment, there can be but little difficulty in so setting forth its substance " that the nature of the offense charged may be easily understood by the jury." In such a case, if in any, it ought to be true that " an indictment is now little more than a simple statement of the offense, such as good sense and regard for the accused alone would suggest:" Com. v. Frey, 50 Pa. 245. " Whether the indictment . . . . might not have been framed with greater precision and certainty, . . . . need not be considered; we have only to determine whether it sets forth, with the requisite certainty, the essentials of the offense which it is designed to charge:" Com. v. White, 24 Pa.Super. 178.

Neither the common law, our legislature nor our Supreme Court has undertaken to specifically define the acts constituting the offense of obstructing a highway; but it has ever been held that any wrongful or unauthorized act by one in or upon the highway, by which the common right of the citizen to safely and freely use it, would be imperilled or seriously interfered with or obstructed, would exhibit the necessary ingredients of the offense. Manifestly, therefore, the offense may be committed not only by the unauthorized erection, on a public road, of a physical structure impeding public travel, but also by one who has the lawful right to use the highway, sub modo, but who undertakes to exercise that right in an unlawful way without regard to the equal rights of the public in their use of it. It is...