Harris v. State , 82 Tenn. 485 ( 1884 )

Wilson, Sp. J.,

delivered the opinion of the court.

The plaintiff in error was indicted and tried in the circuit court of Hickman county for wilfully, maliciously and feloniously putting an obstruction upon the track of a railroad in Hickman county, Tennessee, which threw from the track a hand-car containing some employes of the road, causing the death of one of them.

The indictment, after specifying the character of the obstructions, and how they were placed upon the track, and stating that they were wilfully, maliciously and feloniously put thereon, and had resulted in throwing a hand-car therefrom, causing the death of James Lynch, concludes thus: “And so the jurors aforesaid, upon their oath aforesaid, do say that the said James Harris, by the means aforesaid, in the State and county aforesaid, on the day and year aforesaid, in manner and form as aforesaid, the said James Lynch, felo-niously, wilfully, deliberately, maliciously and premed-itatedly did kill and murder in the first degree.”

The prisoner was found guilty as charged in the indictment, with mitigating circumstances, and upon this verdict of the jury he was sentenced to the penitentiary for life. A new trial having been refused, he has appealed to this court.

Under section 4638 of the Code, “ whoever wil-fully and maliciously puts upon the track of any railroad in this State, any kind of obstruction, or loosens, destroys or injures any of the machinery, gear or apparatus of the locomotive or cars, removes •or changes any signal so as to endanger the safe running of the locomotive and cars, or either or any of them, is guilty of á felony, and upon conviction of •either offense shall be imprisoned in the penitentiary not less than two nor more than fifteen years.”

Section 4689 provides that if any person is killed by any accident occasioned by either of the offenses enumerated in the preceding section, the offender is guilty of murder in the second degree, and that he is to be punished accordingly.

By an act of the Legislature, passed in 1871 (Mil-likin & Vertrees’ Code, section 5388), it is enacted •that if any person is killed by any accident occasioned by either of the offenses enumerated in section 4638, before quoted, the . offender shall be deemed guilty of a felony, and on conviction shall suffer death by hanging.

His Honor, below, held that the indictment was framed upon these provisions of our law, charging the jury fully and correctly with respect thereto, and what must appear to their satisfaction in order to make out the charge thereunder.

It was urged below that the indictment preferred a charge of murder in the first degree ’ under section 4598 of the Code, in view of the concluding portion of it hereinbefore enacted, and the trial judge was requested to instruct the jury upon the different grades of homicide, and the law applicable to them. His refusal to do so is assigned as error.

This contention is untenable. The indictment charges the offense of putting obstructions upon railroad tracks in this State, in the words of the statute, and because it contained other and additional averments not required by the statute, does not necessarily change the offense into a different one. Moreover, it is not framed nor is it sufficient, as an indictment for murder in the first degree.

The indictment having charged, in the language of the statute, the offense of putting obstructions on a railroad track which Occasioned the death of Lynch, the concluding portion of it quoted above is mere surplusage and may be disregarded: 6 Lea, 586.

The evidence shows that the car thrown from the-track by the obstruction placed upon it by the prisoner was a hand-car, used by the hands of the company employed to keep the road in repair; that it was not moved by being attached to an engine, nor used by the company in running its trains to meet the business and traveling demands of the public, or any portion of the public. And it is insisted that an obstruction throwing it from the track is not within the purview or meaning of the statute creating the offense charged in the indictment. We think that this position is sustained by a correct construction of the statutes, viewing them in the light of the evil intended to be remedied. It is obvious that the Legislature, when specifying the obstructions and other enumerated offenses that endangered the “safe running of the locomotive and cars,” or either or any of them, had in view trains or cars moved by an engine propelled by steam, or in some manner connected with the movements of an engine so propelled.

The main and great purpose of the Legislatur-e was to protect the traveling public and its commerce in their transportation over railroads by steam, and those engaged in this service, so as to secure to both safety, and, at the same time, rapid transit. It was not intended by these acts to denounce this severe penalty of death for throwing from the tracks, by an obstruction, a hand-car propelled by employes and used for the purpose of keeping the tracks in repair and free from obstructions.

If the prisoner put the obstructions on the track of the railroad, as charged in the indictment, and they were such as to endanger the safe running of locomotives and cars, or either or any of them, as herein-indicated, he may be convicted for it, and sentenced to the penitentiary for a period of not less than two nor more than fifteen years, although no injury was occasioned thereby.

If death or injury resulted to any person from the-obstructions placed upon the track by him, he may be indicted for murder or manslaughter, and be convicted of either, • accordingly as the proof may show the elements of either to exist.

The judgment will be reversed and the cause remanded for a new trial, or for such other proceedings as the proper officer of the State may deem proper and appropriate.