Shipley v. State

• Decision Date: 19 October 1895
• Citation: 32 S.W. 489
• Parties: SHIPLEY et al. v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

32 S.W. 489

SHIPLEY et al. v. STATE.¹

Supreme Court of Arkansas.

October 19, 1895.

Appeal from circuit court, Franklin county; Jephtha H. Evans, Judge.

L. Shipley and G. W. Bailey were convicted of Sabbath breaking, and appeal. Affirmed.

Appellants were convicted of the crime of Sabbath breaking. The proof for the state was that appellants labored, operating the pumps and fan of the Western Coal & Mining Company at their mine in Franklin county, Ark. The defense was that the work alleged was of necessity. The proof on behalf of appellants was, in substance, that the pumps and fan were adapted to the mine in which they were used; that it was necessary to operate them on Sunday to prevent the probable destruction of the mine, and to protect the lives of the miners; that the suspension of the pumps and fan on Sunday would involve serious loss, delay, and inconvenience. The testimony in detail explained how these consequences would follow upon a failure to operate the pumps and fan on Sunday.

John H. Rogers and Ira D. Oglesby, for appellants. E. D. Kinsworthy, Atty. Gen., for the State.

WOOD, J.

The state having shown that appellants labored on the Sabbath day, operating the pumps and fan, it then devolved upon the defendants to show that such work was of necessity, unless the state by its own proof had shown such to be the case. Whether the work proved was a necessity was a matter peculiarly within the knowledge of defendants. Cleary v. State, 56 Ark. 124, 19 S. W. 313; Fleming v. People, 27 N. Y. 334. The proof on behalf of the state showed that the work done was necessary to keep the mine from flooding with water and from becoming dangerous by filling up with gas, but it did not show that defendants could not have reasonably employed some other device, in the then condition of the mine, that would have answered the same purpose. Nor did the state's proof show that by no ordinary prudence could this mine have been constructed in a way to avoid this Sabbath-day labor. Hence, the burden was left, after the state had shown that the work was done, upon the defendants to make good their defense. Have they done so?

Courts, in construing the term "necessity," as employed in these Sunday statutes, have generally given it a liberal, rather than a literal, interpretation. It is not an absolute, unavoidable, physical necessity that is meant, but rather an economic and moral necessity. 2 Bish. Cr. Law, § 959; Edgerton v. State, 67 Ind. 588; Hennersdorf v. State, 25 Tex. App. 597, 8 S. W. 926; McGatrick v. Wason, 4 Ohio St. 566; Com. v. Knox, 6 Mass. 76; Flag v. Inhabitants of Millbury, 4 Cush. 243; Wilkinson v. State, 59 Ind. 416. If there is a moral fitness or propriety for the work done in the accomplishment of a lawful object, under the circumstances of any case, such work may be regarded a necessity, in the sense of the statute. Com. v. Knox, 6 Mass. 76; Stone v. Graves, 145 Mass....