| Ark. | May 13, 1905
The following complaint, in the form of an indictment, was filed in this action:
“The grand jury of Sebastian County for the Greenwood District thereof, in the name and by the authority of the State of Arkansas, accuse the defendant, Choctaw; Oklahoma & Gulf Railroad Company, of the crime of failing to ring bell or sound whistle at public road crossing, committed as follows, towit: The said defendant, a corporation owning and operating a line of railroad running through the Greenwood District of Sebastian County, Ark., in the county and district aforesaid, on the 4th day of May, 1902, did unlawfully fail and neglect to ring the bell or sound the whistle on a certain engine and locomotive within eighty rods of the crossing of the railroad track of said railroad company and the Booneville and Texas public road, in Road District No. 11, and unlawfully failed and neglected to keep' said bell ringing or whistle sounding until said engine or locomotive then and there crossed said public road, the said engine and locomotive being then and there run by said railroad company on the tracks of said railroad company, against the peace and dignity of the State of Arkansas. Ben Cravens,
“Prosecuting Attorney Twelfth Judicial District.” ■
The defendant filed the following motion: “Comes the defendant, Choctaw, Oklahoma & Gulf Railroad Company, and represents to the court that on the day mentioned in the indictment the defendant operated many trains over its line of railroad through the Greenwood District of Sebastian County, some of which trains were passenger trains and some freight trains, some going east and some west; that from the allegations of the indictment the defendant is unable to determine which particular train is referred to; that the defendant cannot defend this suit without greatly impairing its service and at great expense unless plaintiff be required to set out specifically which of its trains committed the alleged offense. Wherefore, the premises considered, the defendant prays the court to require the plaintiff to make its indictment more definite and certain in this: That the plaintiff shall allege the course and character of the train, the hour of the day and the number of the train by which the defendant operates the same, and to set out such other facts as will enable the defendant to definitely ascertain the particular train referred to in the indictment; and if the plaintiff fails to amend the indictment in this respect, defendant moves the court to dismiss the same.”
After the filing of this motion, and before it was disposed of, and on the same day the attorney of the plaintiff delivered to the defendant the following notice:
“To the above named defendant: You are hereby notified that in the above entitled cases, being indictments numbered 154, 155, 168, 169, 170, 171 and 172, the proof relied upon by the State to make out said cases will be as follows: * * *
“Seventh. In indictment No. 154, thá date is May 4, 1902, the hour about 4 o’clock p. m., the train a freight train and going west.”
The indictment (complaint) in this case was numbered 154.
The court overruled the motion; and a trial followed, which resulted in a judgment in favor of the plaintiff for $200.
We have repeatedly held that such a motion in a case like this should be sustained. Railway Company v. State, 59 Ark. 165" date_filed="1894-05-19" court="Ark." case_name="Railway Co. v. State">59 Ark. 165, 169; Little Rock & Fort Smith Railway Company v. Smith, 66 Ark. 278" date_filed="1899-03-18" court="Ark." case_name="Little Rock & Fort Smith Railway Co. v. Smith">66 Ark. 278; Choctaw, Oklahoma & Gulf Railroad Company v. State, 74 Ark. 159" date_filed="1905-02-04" court="Ark." case_name="Choctaw, Oklahoma & Gulf Railroad v. State">74 Ark. 159. But it is said that the notice to the defendant supplied the defect in the indictment. We do not know of any law or authority by which such a mode of amendment is authorized. It formed no part of the record, was no amendment, and was binding on no on'e. The defendant was entitled to the protection against a second action for the penalty for the neglect or refusal to ring the bell or sound the whistle sued for in this action, which the amendment would give. The notice did not supply it, as it left the defendant to depend, for the protection which the record should have given, upon the uncertain memories and lives of witnesses, unless it is afforded relief in that respect by this appeal.
The trial court seems to have treated the complaint in this case as an indictment. It would not permit it to be amended, and instructed the jury as if the defendant was on trial for a misdemeanor. In this th.e court erred. (The er-ror, however, was not prejudicial to appellant.) We have repeatedly held that the penalty for the failure of a railroad company to ring a bell or sound a whistle at a highway crossing is recoverable by a civil action only. Railway Company v. State, 55 Ark. 200" date_filed="1891-12-05" court="Ark." case_name="Railway Co. v. State">55 Ark. 200; Railway Company v. State, 56 Ark. 166" date_filed="1892-05-07" court="Ark." case_name="Railway Co. v. State">56 Ark. 166; Kansas City, S. & M. Rd. Co. v. State, 63 Ark. 134" date_filed="1896-10-24" court="Ark." case_name="Kansas City, Springfield & Memphis Railroad v. State">63 Ark. 134; St. Louis, I. M. & S. R. Co. v. State, 68 Ark. 561" date_filed="1901-01-19" court="Ark." case_name="Saint Louis, Iron Mountain & Southern Railway Co. v. State">68 Ark. 561. Prosecuting attorneys and courts in this State should conform to the rulings of this court.
Reversed and remanded for a new trial, with instructions to the court to grant the motion.