Kansas City, Springfield & Memphis Railroad Company v. State

• Decision Date: 24 October 1896
• Parties: KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY v. STATE
• Court: Arkansas Supreme Court

37 S.W. 1047

63 Ark. 134

KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY v. STATE

Supreme Court of Arkansas

October 24, 1896

Appeal from Sharp Circuit Court RICHARD H. POWELL, Judge.

Affirmed.

Wallace Pratt and Olden & Orr, for appellant.

The mode of procedure prescribed by section 6200, Sand. & H Dig., is exclusive. Sand. & H. Dig. secs. 6196, 6200; 26 S.W 824; 55 Ark. 200; 56 id. 166; 29 id. 173. Where a statute creates a new offense, and provides a specific remedy or punishment, the statute is exclusive, and must be followed. 8 Otto (U. S.), 555; 91 U.S. 59; Sutherland, Stat. Constr. sec 399; 39 Mich. 141; 67 Barb. 350; Sedgwick, Star. & Const. Law, 343; 55 Ala. 408; Expressio unius est exclusio alterius. 2 Bish. St. Cr. sec. 249, 250; Endlich, Int. Stat. sec. 78; 5 Blatch. 225; 29 Ala. 651; 14 Md. 184; 13 Bear. 22. The indictment was not sufficient as a complaint at law. 26 S.W. 824; 54 Ark. 546; 58 id. 39. Treating the indictment as a complaint, appellant was not required to plead before the third day of the term, and a trial before that time was premature. Sand. & H. Dig. sec. 5735; 2 Tidd's Prac. p. 512; 34 Mo. 321; 58 id. 242.

E. B. Kinsworthy, Attorney General, for appellee.

The offense charged is a public offense and may be prosecuted by indictment. Sand. & H. Dig. secs. 6200, 6196, 1928-9. The remedy is cumulative. The jurisdiction of one court is not taken away by an affirmative statute giving the same to another. Bish. St. Cr. sec. 164; 52 Ark. 54; 45 id. 387; Suth. St. Const. sec. 396; 85 Mo. 480; 121 Ill. 99; 54 Ark. 546; 78 Va. 422. The indictment is a good complaint at law, and can be treated as such. 55 Ark. 200. The court will not reverse a judgment for an error which could have been corrected below. Sand. & H. Dig. sec. 1061, 5772, 5764. Appellant refused to plead, set up no defense, and the judgment should stand. 52 Ark. 80; 50 id. 458.

WOOD, J. BUNN, C. J., dissenting.

OPINION

WOOD, J.

A failure by a railroad to comply with the requirements of sec. 6196, Sand. & H. Diff., subjects it to a penalty to be recovered by civil action brought by the prosecuting attorney in the name of the people of the state. Sec. 6200, Sand. & H. Dig. The act creates no public offense. The circuit court erred, therefore, in proceeding with the case as a criminal, instead of a civil, action. Railway Co. v. State, 55 Ark. 200; Railway Co. v. State, 56 id. 166.

But this court will not reverse except for errors which are substantial and prejudicial. Sand. & H. Dig. p. 414, note q, and sec. 5772.

The record does not show that the result would or could have been different had the court adopted the civil, instead of criminal, procedure, which it should have done. The indictment, treated as a complaint, though not as specific as it should be, states a cause of action. Appellant was present, and, through its attorney, refused to plead to the indictment, insisting that the indictment should be treated as a complaint, and that it was not required to plead until the third day of the term. But the court ordered a plea of not guilty entered for appellant, and proceeded regularly with the trial. Evidence was adduced, the jury were charged, and a verdict and judgment were rendered for $ 100.

Treating appellant's motion in arrest as a motion for new trial, it does not show that a different judgment might have been rendered in a civil proceeding. It should, at least, have shown to the trial court that it had a good defense to the action. Merely alleging in general terms that it had a meritorious defense was not sufficient. This court will not go through the idle ceremony of reversing and remanding the cause for new trial when the result, for aught that appears to the contrary, must remain the same. Prima facie, this record shows a good cause of action. Affirmed.

DISSENT BY: BUNN

BUNN C. J., (dissenting.)

This is an indictment for failing to ring a bell or sound a whistle, under section 6196, Sand. & H. Dig. Verdict and judgment against defendant for $ 100 fine, and defendant appeals. The indictment is as follows (omitting formal parts): "The said Kansas City, Fort Scott & Memphis Railroad Company, on the 27th day of January, 1895, in the northern district of the county and state aforesaid, did, then and there being a railroad company, operating a railroad and running through the northern district of said county, for the purpose of running passenger, freight, and other cars thereon, and there being a certain crossing of said railroad across the Pocahontas & Salem road on the day and year aforesaid, the said railroad company did then and there unlawfully fail to ring a bell or whistle a whistle on a locomotive and train of cars at the distance of eighty rods from the place where said railroad crosses said Pocahontas & Salem road; said locomotive and train of cars, being then and there run along said railroad, did fail to keep a bell ringing or whistle whistling from said point of eighty rods until said train had passed said crossing, against the peace and dignity of the State of Arkansas."

The record states: "On this 2d day of the term (Tuesday) came the State of Arkansas by her attorney, and also came the defendant by its attorney, and this cause coming on to be heard, the state by its attorney announced ready for trial, and, the defendant refusing at this time to plead to the indictment as such, it is ordered by the court that a plea of 'Not guilty' be entered for the defendant. Whereupon, by order of the court, come twelve of the regular panel of petit jurors at the present term hereof, who were duly examined by the court, and found competent to serve, and were accepted as a jury for the trial of this cause. After the hearing of the testimony, and there not being sufficient time to complete the trial of this case, the jury was discharged until tomorrow morning at half past 8 o'clock. The above proceedings were on yesterday and entered now for then. Now, on this day came again the jury herein, who, after receiving instructions of the court, retired to consider of their verdict, and afterwards returned into court the following verdict: 'We the jury, find the defendant guilty, and assess the fine at one hundred ($ 100) dollars.' It is therefore considered, ordered, and adjudged by the court that the State of Arkansas do have and recover of and from the defendant, the Kansas City, Fort Scott & Memphis Railroad Company, the said sum of one hundred dollars as her fine and all her costs in and about this cause had, laid out, and expended. And on Wednesday, January 8, 1896, and the third day of said January term, 1896, of this court, the defendant filed its motion in arrest of judgment assigning six several grounds therefor, some of them subsequently abandoned, so that our attention is directed to the following assignment of errors, to wit: (1) The indictment, as such, does not charge any offense known to the laws of Arkansas. (2) The indictment, treated as a complaint, fails to state...