Parks v. Nashville, Chattanooga and St. Louis Railway.

open the door to a practice adopted in a case originating in another part of the State, now under advisement in this court, of opening a book account of penalties accrued, and delaying suit for a year when such penalties amounted to between $20,000 and $30,000. A construction permitting this would defeat the intention of the legislature, which was to suppress the extortion by prompt prosecution, by enabling parties to forbear suing until the aggregate penalties amounted to a large sum, and induce others to do as one of the plaintiffs in one of the cases now in judgment was honest enough to testify he did; that was to abandon other business, and spend his time for a considerable period in riding back and forth from Tonawanda to Buffalo for the purpose of earning penalties."

The plaintiff in this suit has brought before us precisely the case presented to the court of errors and appeals of New York under a similar statute. The decision of that eminent tribunal commends itself to our judgment and sense of justice. To allow a person to open a book account of penalties at an insignificant way station, and run up a charge of $24,000 for the failure of the conductor to announce the station, or the length of stay, of which no passenger has complained, would shock the conscience, pervert the intention of the legislature, and turn a remedial into a highly punitive statute. It would be a literal construction of the words of the statute which would recall the similar construction by a somewhat famous judicial tribunal of the middle ages of a law making it a capital offense to shed blood in the street, whereby an unfortunate leech was condemned to the gallows for bleeding his apoplectic patient on the sidewalk where he had dropped down. If the legislature had, in the act before us, in so many words authorized what the plaintiff has done without any notice to the company, it would be difficult to sustain the constitutionality of the statute. For the effect would be the imposition of an excessive fine. Const., art. 1, § 16. But the legislature had no such intention, and we' shall not press the language used so as to do indirectly what could not perhaps have been done directly. The statute, both upon reason and authority, admits of a different construction. We are of opinion therefore that only one penalty can be recovered up to the bringing of the suit.

[Omitting minor point.]

The exceptions to the report of the referees will be sustained, the judgment of the court below reversed, and the cause remanded

State v. Gardner.

for a repleader with leave to the defendant to move to strike out all the counts of the declaration except one to be selected by the plaintiff, and with directions to the Circuit Court to proceed in accordance with this opinion by striking out the other counts. The defendant will pay the costs of this court.

A lost indictment may be supplied by a copy, upon affidavits, independent of the recollection of the judge.*

It seems, the case is covered by the Code.

FREEMAN, J. At March term, 1883, ten presentments were returned, found true bills, into the Circuit Court for Obion county, against the defendant, Gardner. Capias was issued on all these, and defendant arrested. In August after this the clerk's drawer was broken open, and the presentments all stolen and never recovered.

After this, in open court, the energetic district attorney-general of this district moved the court to supply the lost papers, and tendered the affidavit of the clerk, showing the loss and circumstances attending it, together with his own affidavit, showing the papers by him tendered to supply the loss were clearly the same as the papers stolen. This was shown by the fact that the presentments were printed forms, the same as then in his possession, and the facts as to dates, etc., necessary to be inserted in writing, were taken from the notes found in the grand jury book, together with

* See Schultz v. State, ante, 194.

State v. Gardner.

the memory of the officer, of the facts from information had by him at the time of drawing the papers from the witness on whose testimony they were found. There is no question but the proof of the identity of the matter of the papers was clearly made out.

His honor the Circuit judge refused to allow the papers supplied, basing his ruling upon the fact that from his own statement, found in the record, he had never read the presentments, and therefore could not himself say whether the papers tendered were correct,

"To

The ruling of his honor is based on the early decision of this court. State v. Harrison, 10 Yerg. 542. That case is evidently the result of the technical views of our courts at that day, and the theory then prevalent, that all technical objections should be allowed to prevail in favor of the defendant in criminal cases. No such views now prevail, nor would they be in accord with the spirit in which the criminal law is now and should be administered. Judge TURLEY, in the above opinion, seems also to lay much stress on the danger to the lives and liberties of the citizen. He says: establish the principle that a judge might supply a lost indictment upon affidavits of others, independent of his own recollection, would, as we think, be exceedingly dangerous to the lives and liberty of the citizen." We are unable to appreciate at this day the force of this reasoning. When analyzed, it means simply that in a case like this, where the best evidence possible is furnished of the correctness of the supplied papers, it should not be done, because of failure to get the evidence of the judge who would be the party least likely ever to be able to furnish such evidence, who in this case (as it would be found practically in any case) had never read the indictment or presentment, and who by the duties of his place is never required or expected to do so. As to the danger to the citizen, that has no better support in reason. What forcible difference it can make to an innocent man whether the proof of his innocence be presented to a jury, upon an original or copy of a presentment, is to us unseen. If he be guilty, then he deserves to be convicted, no wrong is done him, and the law is vindicated. Happily such views have all passed away.

The plain principle of the common law and of sound reason should apply in a criminal case as well as in civil cases, that is when the papers are lost they shall be carefully and accurately supplied by satisfactory evidence of their loss and their contents.

While we have no doubt the law is as we have stated and the

66

State v. Gardner.

papers were properly offered to be supplied in this case under the rules of the common law, we think a fair construction of the act of 1847-8, section 3907 of the Code would include this as well as civil causes. It is: Any record, proceeding or paper filed in any action at law or equity if lost or mislaid unintentionally, or fraudulently made away with, may be supplied upon application under the orders of the court, by the best evidence the nature of the case will admit of." This may well be held to be a criminal action pending at law against defendant, under the definition of Bacon, who says actions are either criminal or civil-criminal are either where judgment of death, as appeals of death or robbery, or only to have a fine for the king or imprisonment. See Bacon Abr., vol. 1, 63.

A more liberal rule in fact might well be adopted in criminal cases like the present, where no other papers seem to have been stolen, because the grave suspicion must be indulged that in such a case the defendant has been the party guilty of the abstraction, or was in some way actively connected with it--he the only party who has the slightest interest in the destruction of the papers. To hold that the papers could only be supplied from the memory of the judge is practically to hold that they could not be supplied at all, and thus hold out an inducement to the parties prosecuted to surreptitiously obtain and destroy the papers and thus avoid the penalty of the law. Still more, the higher the crime or the heavier the penalty likely to be incurred, the greater the temptation, and so the evil tendency of the view is still more intensified in criminal

cases.

For these reasons we overrule the case in 10 Yerger, and hold the court erred in not permitting the papers supplied. The case will be remanded to be proceeded in under this opinion.

Jackson v. Nashville, Chattanooga and St. Louis Railway.

JACKSON V. NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY. (13 Lea, 491.)

Damages-proximate cause.

The defendant left a train of cars standing entirely across a highway crossing near its station, and the plaintiff, desiring to reach the station, undertook to drive with a horse and cart at a point where there was no crossing and the track was raised above the ground, and he was thrown off by the jostling of the cart and injured. Held, that the injury was not the proximate result of the defendant's conduct.*

A

CTION for personal injury by negligence. The opinion states the case. The plaintiff had judgment below.

W. C. Donaldson, for Jackson.

Foster V. Brown and W. D. Spears, for railroad company.

COOPER, J. The Circuit judge sustained a demurrer to the declaration in this case and the referees report that his judgment should be reversed. The defendant excepts.

The action is brought to recover damages for injuries to the plaintiff's husband resulting in his death. The declaration avers that the defendant's branch road passes through the town of Victoria, in Marion county, having a depot on its south side for the accommodation of passengers and the receipt of their baggage and freight; that the business part of the town and the residence of plaintiff's husband were on the north side of the railroad; that there was only one public crossing or way over the railroad for reaching the depot from the north side which was made and provided by the defendant for the public to travel on and over; that on the evening before the injury to the plaintiff's husband resulting in his death, the defendant left a train of cars standing on their track across the way aforesaid, and although notified that evening by the deceased that he wished to cross the road the next morning, failed to remove the same; that on the next morning the plaintiff's husband drove his cart in which was the trunk of a traveller intending to take passage on the defendant's train that morning, along the public way across * See Ehrgott v. Mayor (96 N. Y. 264), 48 Am. Rep. 622; note 47 id. 385.