St. Louis, I. M. & S. Ry. Co. v. State

• Decision Date: 19 January 1901
• Citation: 60 S.W. 654
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. STATE.
• Court: Arkansas Supreme Court

60 S.W. 654

ST. LOUIS, I. M. & S. RY. CO. v. STATE.

Supreme Court of Arkansas.

January 19, 1901.

Appeal from circuit court, Sebastian county, Greenwood district; Styles T. Rowe, Judge.

Suit by indictment against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment against it, defendant appeals. Reversed.

Oscar L. Miles and Dodge & Johnson, for appellant. Jeff Davis, Atty. Gen., and Chas. Jacobson, for the State.

BATTLE, J.

On the 13th of September, 1899, the grand jury of the Sebastian circuit court for the Greenwood district returned into said court an indictment in the words and figures following:

"The grand jury accuses the defendant of failing to ring a bell or sound a whistle at a road crossing, in this: On August 18, 1899, defendant, being a corporation organized under the laws of Missouri, doing business in the state of Arkansas, and complying with her laws providing for the doing of business in this state by foreign corporations, unlawfully did fail to ring a bell, and fail to sound a whistle, at or near or within 80 rods of the crossing of the railroad belonging to defendant running from Fort Smith to Greenwood, and the Fort Smith and Waldron wagon road, at road district No. 3, in Marion township, at which time and place defendant did run, and cause to be run, southward over said railway, and across said road district, a locomotive engine and train of cars, said engine bearing a number which is unknown to the grand jury, but which is believed to be `62,' against the peace and dignity of the state of Arkansas."

On the 3d day of January, 1900, it being the third day of the January term, 1900, of the Sebastian circuit court for the Greenwood district, the state of Arkansas, by its prosecuting attorney, demanded a trial of the St. Louis, Iron Mountain & Southern Railway Company in said court under the indictment against it, which was ordered; and, the defendant not being present in person or by attorney, a plea of not guilty was entered for it, and a jury was impaneled to try the issues thereby joined, and the plaintiff introduced witnesses, who testified substantially as follows:

That the defendant failed to ring a bell and failed to sound a whistle at or near or within 80 rods of a crossing of the railroad belonging to the defendant, running from Ft. Smith to Greenwood, and the Ft. Smith and Waldron wagon road, in district No. 10, in Marion township, at which time and place the defendant did run, and cause to be run, southward over said railroad, and across said road district, a locomotive engine and train of cars, said engine bearing a number unknown to the grand jury, but which is believed to be "62."

The plaintiff introduced also a mortgage executed by the St. Louis, Iron Mountain & Southern Railway Company, which on its face showed that the St. Louis, Iron Mountain & Southern Railway Company was a consolidated corporation, duly organized under the laws of Missouri and Arkansas; and the plaintiff thereupon rested its case.

The court instructed the jury, and they afterwards returned a verdict in favor of the plaintiff against the defendant for $200, the penalty allowed by the statute for the failure specified in the indictment, and the court rendered judgment accordingly.

On the 5th day of January, 1900, the defendant filed a motion to arrest the judgment, as follows: "Comes the defendant, the St. Louis, Iron Mountain & Southern Railway Company, and moves the court to arrest the judgment in this cause, rendered on the 3d day of January, 1900, and for cause says:

"First. That there was no sufficient indictment pending against this defendant upon which this defendant could be tried.

"Second. That the alleged indictment against this defendant did not state facts sufficient to constitute a public offense, under the laws of this state.

"Third. That the facts stated in the alleged indictment do not constitute a public offense within the jurisdiction of the court."

The court overruled this motion, and the defendant thereupon filed a motion for a new trial, which, omitting its caption, is as follows:

"Comes the defendant, the St. Louis, Iron Mountain & Southern Railway Company, and moves the court to set aside the verdict in this cause rendered, and grant it a new trial, and for cause says:

"(1) The court erred in forcing the defendant to trial in the absence of counsel for the defendant on the first day of the term of this court.

"(2) The court erred in overruling defendant's motion in arrest of judgment in this cause.

"(3) The verdict of the jury is contrary to the law.

"(4) The verdict of the jury is not supported by sufficient evidence.

"(5) The verdict of the jury is against both the law and the evidence.

"(6) The court erred in admitting illegal and incompetent evidence against the defendant upon the trial of the cause."

The motion for new trial was filed on the 20th of January, 1900, and was on the same day overruled by the court, and the defendant appealed.

Appellant's first contention is that appellee sought to recover the penalty sued for by an indictment, which could be recovered only in a civil proceeding, and that the court below was therefore without jurisdiction. It is true that the penalty can be recovered only by a civil action. St. Louis, I. M. & S. Ry. Co. v. State, 55 Ark. 200, 17 S. W. 806; Kansas City, S. & M. R. Co. v. State, 63 Ark. 134, 37 S. W. 1047. The statement of the facts constituting plaintiff's cause of action, though in the form of an indictment, could have been properly treated as a complaint. It...