State v. Baltimore & O. R. Co

• Decision Date: 22 November 1910
• Citation: 69 S.E. 703,68 W.Va. 193
• Court: West Virginia Supreme Court
• Parties: STATE v. BALTIMORE & O. R. CO.

69 S.E. 703

68 W.Va. 193

STATE

v.BALTIMORE & O. R. CO.

Supreme Court of Appeals of West Virginia.

Nov. 22, 1910.

(Syllabus by the Court.)

1. Railroads (§ 255^*)—Obstructing Highways — Prosecution—Sufficiency of Indictment.

An indictment against a railroad company for obstructing a public road, by suffering one of its trains to remain standing across the road for a longer time than is allowed by law, is not demurrable because it fails to designate the particular train, or the time when the wrong was committed. It is sufficient if it alleges that it was done within one year next preceding the finding of the indictment.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 778, 784; Dec. Dig. § 255.*]

2. Indictment and Information (§ 121*) — Criminal Law (§ 1186*)—Right to Bill of Particulars.

Under such indictment the court should require a bill of particulars, if motion therefor is made before pleading to issue, supported by affidavit showing that defendant, during the year, ran many trains over its railroad each way, some passenger trains and some freight trains, each train being in charge of a different crew, and that it is not advised concerning the particular train that caused the obstruction.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. 8§ 316-320; Dec. Dig. § 121;* Criminal Law, Cent. Dig. §§ 3215-3219; Dec. Dig. § 1186.*]

3. Indictment and Information (§ 121*) — Criminal Law (§§ 1186, 1149*)—Right to Bill of Particulars.

To refuse a bill of particulars in such case is prejudicial, and may be cause for reversal.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 310-320; Dec. Dig. § 121:* Criminal Law, Cent. Dig. §§ 3215-3219, 3041; Dec. Dig. §§ 1186, 1149.*]

4. Railroads (§ 255*) — Obstruction of Highway — Prosecution—Sufficiency of Evidence.

Proof of one obstruction only, under such indictment, without other evidence to show that defendant either authorized or approved it, will not sustain the indictment. The defendant's acquiescence in or ratification of the unlawful act will not be inferred from the one act alone.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 778, 787; Dec. Dig. § 255.*]

Error to Circuit Court, Barbour County.

The Baltimore & Ohio Railroad Company was convicted of obstructing a public road, and brings error. Reversed and remanded.

Blue & Dayton, for plaintiff in error.

Win. G. Conley, Atty. Gen., for the State.

WILLIAMS, J. The defendant was convicted in the circuit court of Barbour county for obstructing a public road by suffering one of its trains of cars to remain standing across it for a longer time than five minutes, and has brought the case to this court on writ of error.

The first error alleged is the overruling of defendant's motion to quash the indictment. The court committed no error in respect to this motion, because the indictment contains all the essential elements of the offense charged. True it does not allege the day, or the month, when the offense was committed, but it does allege that it was committed within one year next preceding the finding of the indictment. This is sufficient.

Before pleading to the issue, defendant moved the court to require the state to furnish It a bill of particulars, and in support of its motion tendered the affidavit of U. B. Williams, superintendent of the Monongah Division of defendant's railroad. The motion was overruled, and an exception was taken making the affidavit a part of the record. Affiant says that defendant operates a number of trains daily over its road through the town of Philippi, where the obstruction is alleged to have occurred; that it runs two passenger trains each way daily, and a number of freight trains; that each train is in charge of a separate train crew, and that it is impossible for it to make defense, unless it is informed more definitely than it is by the general terms of the indictment, concerning which one of its numerous train crews caused the obstruction.

If the charges in an indictment are too general in their nature to advise a defendant of the particular act with which he is charged, and he is, consequently, unable to properly prepare his defense, the court may require the attorney for the state to furnish him a hill of particulars. 22 Cyc. 371; 1 Bish. Crim. Proc. § 643. But the courts of the country ate divided on the question whether, or not, the refusal to require a bill of particulars, when properly asked for, is a matter which can be reviewed by an appellate court The courts of a number of the states, as well as the Supreme Court of the United States, hold that it is within the discretion of the trial court, and is not subject to review. Commonwealth v. Giles, 1 Gray (Mass.) 466; Commonwealth v. Wood, 4 Gray (Mass.) 11; Sullivan v. People, 108 Ill. App. 328; People v. Remus, 135 Mich. 629, 98 N. W. 397, 100 N. W. 403; Dunlop v. United States, 165 U. S. 486, 17 Sup. Ct. 375, 41 L. Ed. 799. Some other states hold that a request for a bill of particulars, notwithstanding it is a matter within the sound discretion of the trial court, is, nevertheless, a matter subject to review, and when the discretion has been abused, by improperly refusing a bill of particulars, it is ground for reversal. Railway Co. v. Smith, 66 Ark. 278, 50 S. W. 502; Railroad Co. v. State, 74 Ark. 159, 85 S. W. 85; State v. Lindgrove, 1 Kan. App. 51, 41 Pac. 688; Mathis v. State, 45 Fla. 46, 34 South. 287. In the last case above cited, Judge Shackelford discusses the subject at considerable length, citing many authorities on the question, and concludes with his own observation, as follows, viz.: "Such an application or motion, however, is not founded upon a legal right, but is a matter resting within the sound judicial discretion of the court, depending entirely upon the nature and circumstances of each particular case as they appear to the court before whom the trial is had, and the refusal of the trial judge to grant said motion will not be disturbed or reversed by an appellate court, unless there...