Koppala v. State

• Decision Date: 15 April 1907
• Citation: 15 Wyo. 398,89 P. 576
• Parties: KOPPALA AND LAMPE v. STATE
• Court: Wyoming Supreme Court

89 P. 576

15 Wyo. 398

KOPPALA AND LAMPE v. STATE

Supreme Court of Wyoming

April 15, 1907

Rehearing Denied February 10, 1908, Reported at: 15 Wyo. 398 at 416.

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Information under Section 2572, Revised Statutes, 1899, charging Nels Koppala and Isaac Lampe with the offense of intentionally entering an unsafe place in a certain coal mine (Hanna Mine No. 1, Carbon County) against the caution of the mining boss thereby endangering the lives and health of persons employed in the mine and the security of the mine and machinery therein. The material facts are stated in the opinions. The information is quoted in the opinion upon the petition for rehearing. After a conviction the accused brought error.

Affirmed.

John H Murphy and Chatterton, Preston & Coolidge, for plaintiffs in error.

A criminal complaint or information which does not state facts sufficient to constitute a crime will not support a judgment and its defects cannot be cured by the introduction of testimony. (1 Bish. New Cr. Pro., Secs. 123, 795; People v. The State, 109 Ind. 545; Com. v. Doyle, 110 Mass. 103; State v. Watkins, 101 N. C., 702; State v. Levy, 119 Mo. 434; Fletcher v. State, 12 Ark. 169. It was incumbent upon the prosecutor to allege what the "caution" consisted of--to set out the order itself. The names of the persons who might be injured should have been stated. Why the place in the mine was unsafe should be stated. That the act was done "intentionally" should have been alleged. "Wilfully" and "wrongfully" do not supply the omission.

To state the nature and cause of an accusation as required by Section 10, Article 1, of the constitution, every ingredient of the crime should be set out. (U. S. v. Cruikshank, 92 U.S. 542; Schneider v. People, 30 Colo. 493.) The indictment must state explicitly and directly every fact and circumstance necessary to constitute the offense, whether such fact or circumstance is an external event or an intention or other state of mind, or circumstance of aggravation affecting the legal character of the offense, and the charge must always be sufficient to support itself; and it cannot be helped out by evidence at the trial, or be aided by argument and inference. (1 Hawk. P. C., Chap. 25, p. 40; Com. v. Newburyport Br., 9 Pick., 142; U. S. v. Cruikshank, 92 U.S. 542; Com. v. Whitney, 5 Gray, 85; State v. Perry, 2 Bailey (S. C.), 17; Com. v. Dougherty, 103 Mass. 443; People v. Heffron, 53 Mich. 527; State v. Record, 56 Ind. 107; State v. Fitts, 44 N. H., 621; Fench v. State, 64 Miss. 461; State v. Mace, 76 Me. 64; People v. O'Callagan (Ida.), 9 P. 415; U. S. v. Reese, 92 U.S. 225; People v. Dumar, 106 N.Y. 502; 1 Chitty, C. R. Law, 172; Com. v. Dudley, 6 Leigh., 613; Com. v. Shaw, 7 Metc., 52; State v. Bushey, 84 Me. 459; State v. Haven, 9 A. 841; 10 Ency. Pl. & Pr., 487; Cannon v. U.S. 116 U.S. 55; Evans v. U.S. 153 U.S. 584; U. S. v. Peterson, 55 F. 605; U. S. v. Cook, 84 U.S. 17.) Under these authorities, too, if a statutory offense is not fully, directly and without uncertainty defined in the statute, an indictment will not be sufficient in the language of the statute. (U. S. v. Carll, 105 U.S. 611; U. S. v. Simmons, 96 U.S. 360; Pettibone v. U.S. 148 U.S. 197; Re Greene, 52 F. 104; 2 Story's Const., 1785.)

If no offense within the jurisdiction of the court is stated, such a defect being fatal at any stage, it is not waived by failure to take advantage thereof at any preliminary stage of the proceedings. (People v. Ross, 103 Cal. 425; Reyes v. State, 34 Fla. 181; State v. Garvey, 11 Minn. 154; Newcomb v. State, 37 Miss. 397; State v. Nunley, 185 Mo. 182; People v. Gregg, 59 Hun, 107; 8 Pl. & Pr., 201.) Under this statute, the circumstances under which the acts were done should have been stated. (O'Donnel v. People, 110 Ill.App. 250.)

The information is insufficient because the name of the mining boss and the name or names of any individual or individuals in the mine against whom any act of the defendants might work an injury, is not stated nor any reason given for such omission. (Jacobs v. State, 35 S.W. (Fla.), 65; Black v. State (Tex.), 79 S.W. 308; McCloy v. State, 178 Mo. 348; Clark's Cr. Pro., pp. 339, 340, and cases cited.)

While the statute under which the information was drawn does not make any of the things prohibited therein a crime, unless done with evil intent, yet the information nowhere alleges that the defendants intentionally did any act; likewise instruction No. 1 is erroneous, in that the court omitted telling the jury that the defendants could not be found guilty without it appearing from the evidence, beyond a reasonable doubt, that they intentionally did something condemned by the statute. (Com. v. Percy, 2 Allen, 173.) The property of a corporation must be laid in the corporation. (People v. Bogart, 32 Cal. 248; McCowen v. State, 58 Ark. 17.) No legal proof was made of the corporate existence of Hanna Coal Company No. 1, nor was it stated in the information under the laws of what state such corporation was organized. The fore part of the statute enumerates a number of things, the doing of any one of which will constitute a misdemeanor, and unquestionably the Legislature under the police powers has a right to say that the omission of certain acts productive of injury to life or property shall be a crime, but it is not within its province to say that the order of A., B., or C., when disobeyed, shall constitute a crime. The language of the statute, to-wit. "or enter any place of the mine against caution, * * * or do any act whereby the lives and health of persons or the security of mines and machinery are endangered, shall be deemed guilty of a misdemeanor, etc.," is so indefinite and uncertain that they do not, under all established rules, meet the requirements of a criminal statute. It will be noted that the statute does not attempt to make the entrance of a mine against caution a crime, but to enter any place in a mine. With this power in the hands of a mining boss to make a man a criminal if his caution is disobeyed, he could indefinitely keep every miner in the underground workings prisoners, or make criminals of them, for all he would have to do would be to "caution" them not to enter any of the passageways leadings to the surface of the earth, and if they disobeyed that order, it being against caution, they would be guilty of a misdemeanor. The statute is, therefore, unconstitutional. (U. S. v. Blasingame, 116 F. 654; U. S. v. Eaton, 144 U.S. 677; U. S. v. Maid, 116 U.S. 650.) Again, consider that part of the statute which says "or do any other act whereby the lives or the health of persons or mine or machinery is endangered," and it will be perceived that it is wholly uncertain, and inasmuch as no act is mentioned the doing of which is declared to be criminal, it must necessarily vitiate the statute. (State v. Mann., 2 Ore. 238; Cook v. State, 26 Ind.App. 278; Augustine v. State, 41 Tex. Cr., 59.)

It is a canon of law that an act innocent in itself or not malum in se, cannot be made a crime by any power except a legislative body. This statute leaves it to one man to give an order prohibiting something that before was perfectly innocent and because of a disobedience of such order the act becomes criminal. This cannot be done. (State v. Burge, 95 Wis. 390; Schaelzein v. Cavaniss, 135 Cal. 466; Louisville & N. R. Co. v. Com., 99 Ky. 132; Dowling v. Ins. Co., 92 Wis. 63; Anderson v. Fire Co., 59 Minn. 152; O'Neil v. Ins. Co., 26 L. R. A., 715; Club v. Alpena, 99 Mich. 117.)

It is clear to be seen that there is nothing in the title relative to the subject matter of the section. So this section of the act never could have been valid, and, though incorporated into the Revised Statutes, it would have no more force or effect than if the compilers had inserted language concerning any other subject which had never been before the Legislature. (People v. Fleming, 7 Colo. 230; In re Breene, 14 Colo. 401.)

W. E. Mullen, Attorney General, for the State.

Exceptions to an indictment or information must usually be made before trial on the general issue. If they are formal, or such as may arise upon a demurrer, plea in abatement or motion to quash, they must generally be made and adjudicated preliminary to the trial, and if not thus made, they will, in contemplation of law, be waived. (10 Ency. Pl. & Pr., 564.) Objections to indictments cannot be raised by objecting to the introduction of evidence at the trial. (U. S. v. Harmon, 45 F. 414; State v. Risley, 72 Mo. 616; Rice v. State, 3 Kan. 168; People v. Apple, 7 Cal. 290.) The demurrer to the information was on grounds subject only to a motion to quash. (Sec. 5326, R. S. 1899; Wilbur v. Ter., 3 Wyo. 268; State v. McCaffrey, 40 P. 63 (Mont.); Miller v. State, 3 Wyo. 657.)

The offense is charged in the exact language of the statute, and in terms sufficiently minute. The nature of the caution given defendants is properly a matter of evidence only. It is true that the name of the particular person who gave the order was not stated, but he is referred to as the "mining boss," not one of the mining bosses; we think the allegation amounts to a statement that there was but one official of that kind employed about the mine. The name of the official having been stated, and there being but one official of the kind employed at the mine, certainly makes as clear a statement as if the name of the person who was serving in that official capacity had been stated. The defendants well knew who was meant and referred to in the information, and were not misled in their defense. It is alleged that the mine entry was an unsafe portion of the mine. This would certainly appear to be a fair statement of an...