State v. Divine

• Decision Date: 05 December 1887
• Citation: 98 N.C. 778,4 S.E. 477
• Parties: State v. Divine.
• Court: North Carolina Supreme Court

4 S.E. 477

98 N.C. 778

State

v.Divine.

Supreme Court of North Carolina.

December 5, 1887.

1. Railroad Companies—Negligbnoe—Criminal Responsibility of Superintendent —Constitutional Law.

Code N. C. § 2829, provides that whenever any live-stock shall be killed by the engines or cars on any of the railroads mentioned, and such killing is proved, it shall be prima facie evidence of negligence in any indictment therefor under this chapter. Held, that this section subverts the presumption of innocence, deprives the defendant of the equal protection of the laws, and is not sanctioned by the constitution.

3. Same.

Code N. C. § 2327, provides that when live-stock shall be killed by any railroad in certain counties named, it shall be a misdemeanor; and certain officers named, and the conductor and engineer of the train which did the killing, may be indicted, etc. Held, that the act lacked the equality and uniformity necessary to constitutional legislation.

3. Trial—Verdict—Special Findings.

In a trial under an indictment charging the defendant, as superintendent of a railroad company, with a personal criminal responsibility for running over and killing two cows by a train, the special verdict found that the defendant was not on the train that did the killing, and was in no way connected with said killing. Held, that the special verdict should have found, subject to the opinion of the judge upon the law, the defendant guilty or not guilty.

Appeal from superior court, Columbus county; ClaRk, Judge.

Prosecution by the state, plaintiff, against J. F. Divine, defendant, charged under acts K. C. 1880, c. 13, with personal criminal liability for the killing of two cows by a train on the railroad track of the company, whereof he was superintendent. Judgment for defendant in the circuit court, and plaintiff appealed.

George Davis and E. C. Smith, for defendant.

The act is in violation of section 17 of the declaration of rights of North Carolina: "No person ought to be * * * in any manner deprived of his life, liberty, or property, but by the law of the land." And also of the fourteenth amendment: "Nor shall any state deprive any person of life, liberty, or property without due process of law."

These provisions were directed against the arbitrary and oppressive exercise of the powers of government. They were intended to fix a limit beyond which the law-making power should not go in the direction of oppression to the citizen, and to establish for his protection certain safeguards, of which no earthly power could ever deprive him, so long as the judges shall continue faithful to duty. The phrases "the law of the land, " and "due process of law, " are convertible terms, and mean the same thing. They intend, clearly, that no person shall be assailed in person or property without notice, and an opportunity for defense. Bank v. Okely, 4 Wheat. 244; Murray's Lessee v. Land Co., 18 How. 277; Brown v. Levee Com'rs, 50 Miss. 468; Taylor v. Porter, 4 Hill. 140, Bronson, J.; Hoke v. Henderson, 4 Dev. 16. In Murray's Lessee v. Land Co., 18 How. 277, already cited, the question was whether an act of congress, which authorized the solicitor of the treasury to issue a warrant of distress against the property of a revenue officer for the amount found due on adjusting his accounts in the treasury department, was "due process of law" within the fifth amendment of the constitution of the United States. The act was apparently as violent and arbitrary as possible. There was no suit to be brought, and no opportunity for defense. The balance was struck at the treasury, and execution issued forthwith. But yet, because it was found that there had been no period since the establishment of the Englishmonarchy when there had not been a summary method established by law for the recovery of debts due to the crown, and especially those due from receivers of the revenues, the act was held to be constitutional and valid. And so, in this state, in a series of cases beginning with State v., 1 Hayw. (N. C.) 28, and ending with Worth v. Cox, 89 N. C. 48, for the same reason, acts authorizing summary judgments to be taken against sheriffs, and other accounting officer of the state, have been held not inconsistent with this clause of the constitution. Code, § 2329, provides that whenever any live-stock shall be killed by the engines or cars on any of the railroads mentioned, and such killing is proved, it shall be prima facte evidence of negligence in any indictment under this chapter. Thus, in every criminal prosecution under this act, the defendant is deprived of the benefit of that great and fundamental rule of the common law, that every man shall be considered innocent until proved to be guilty. Nor is that all. The result of that deprivation would simply be to leave the question of guilty or not guilty an open one of fact for the jury. But the act goes far beyond that, and not only takes away the presumption of innocence, but imposes upon the defendant a presumption of guilt, and requires him in every case to prove his innocence. Such an act cannot be respected as the law of the land. Cooley, Const. Lim. 309: "Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. * * * The mode of investigating the facts is the same in all, and this is through a trial by jury, surrounded by certain safeguards which are a well-understood part of the system, and which the government cannot dispense with." Cummings v. Missouri, 4 Wall. 328: "And this is not all. The clauses in question subvert the presumption of innocence, and alter the rules of evidence which heretofore, under the universally recognized principles of the common law, have been supposed to be fundamental and unchangeable." State v. Beswick, 13 R. 1. 211: A statute provided, that, on a criminal prosecution for illegally keeping intoxicating liquors for sale, the keeping of implements or appurtenances usually appertaining to grog-shops and the like places, shall be prima facie evidence of such illegal keeping. The court say: "We think it repugnant to the constitutional provision that the accused shall not be deprived of liberty or property unless by the judgment of his peers or the law of the land." Wynehamer v. People, 13 N. Y. 446, Selden, J.: "Precisely how far the legislature may go in changing the modes and forms of judicial proceedings I shall not attempt to define; but I have no hesitation in saying that they cannot subvert that fundamental rule of justice which holds that every man shall be presumed innocent until he is proved guilty." People v. Lyon, 27 Hun, 180: "On the contrary, this clause of the statute declares a fact, with which the accused is not necessarily connected, to be prima facie evidence of an illegal act of the accused, and of the intent with which it was done. Thus, this clause comes within the condemnation expressed by Judge Seldi: n in Wynehamer v. People, 13 N. Y. 444." On the argument below, attention was called to Code, § 1005: "And if anyone, not being on his own lands, shall have about his person any such deadly weapon, such possession shall ha prima facie evidence of the concealment thereof." Perhaps that provision may be justified on the ground that in all such cases the accused is always necessarily connected with the fact of the possession, while in our case the jury have found that the defendant was not connected at all with the killing of the cattle.

The act is unconstitutional for another reason: It is not general in its operation, acting alike on all citizens or classes of citizens. It does not embrace all railroad officials, nor even certain officials of all railroad companies. It is confined to certain officers and employes of a few specified railroad companies, and subjects them to trial and punishment in a manner peculiar to them, and by rules of evidence which are inapplicable to all other citizens of the state. Cooley, Const. Lim. 309; Bank v. Cooper, 2 Yerg. 599; Budd v. State, 3 Humph. 483. The act is partial and unequal in another respect: It embraces only stock killed in the particular counties named.

The act is in violation of article 1, § 19, of the constitution of the state, in that it deprives, or attempts to deprive, the corporations owning the roads in the counties named in it, of a trial by jury. It is plain that the act is directed chiefly against the railroad companies, and its main object is to compel them to arbitrate. It oj^erates upon them indirectly, but none the less effectively, by a severe and extraordinary pressure upon their officers and employes. It says to them, in terms not to be misunderstood: "You must submit the case to arbitration, or else your officers and employes shall be guilty of a crime, and, on being prosecuted therefor, shall be compelled to go to trial fettered by a, prima facie presumption of guilt, and required to prove, not their innocence, but that of the corporation." In Railroad Co. v. Gardner, 19 Minn. 132, (Gil. 99,) 18 Amer. Hep. 334, a statute of Minnesota, authorizing a compulsory reference in actions at law, was held to be unconstitutional and void, as depriving the party of trial by jury. In Graves v. Railroad Co., 5 Mont. 556, 6 Pac. Rep. 16, and 51 Amer. Rep. 81, a statute of Montana rendering railroad companies liable for cattle killed by them, at a valuation to be conclusively fixed by appraisers, was held void for the same reason. And see McMartin v. Bingham, 27 Iowa, 234.

The act is unconstitutional in still another respect. Section 2330 enacts that no indictment shall lie until a proposition to refer has been made by the party damaged, and refused by the company. The killing of cattle is not made criminally punishable in itself, but only becomes so by the subsequent act of third persons. The chief value of the constitution consists in the protection it affords to the citizen against the arbitrary and tyrannical action of...