Commonwealth v. Fitchburg Railroad, 120 Mass. 372

Commonwealth v. Fitchburg Railroad

120 Mass. 372 | Mass. | 1876

Loed, J.

The indictment- in this case contained five counts, and, as appears by the bill of exceptions, all for the same of-fence, although it is not alleged, as sometimes it is, that the various counts are different modes of charging the same offence. It has long been the practice-in this Commonwealth to charge several misdemeanors in different counts of the. same indictment, and to enter verdicts and judgments upon the several counts, in the same manner and with the same effect as if a separate indictment had been returned upon each charge. It has also been long established that the same offence may be charged, as committed by different means or in different modes, in various distinct counts of an indictment, and that a general verdict of guilty upon such imlictment and judgment thereon is a conviction of but a single offence, and is deemed to be upon that count of the indictment to which the evidence is applicable.

The first count charges generally a killing of the person named therein within the city of Somerville, by reason of the gross negligence of the servants of the defendant in the management of a locomotive engine then in charge of said servants.

The second count charges the killing to have been by collision at the crossing at grade of a highway in Somerville, by reason of the same negligence.

■ The third count charges that the death was caused, either by the defendant’s own neglect or the neglect of its servants, by collision at the crossing at grade of a town way in Somerville, and *381that it was by reason of neglect of the servants and agents in charge to ring the bell or sound the whistle upon approaching said crossing as required by law.

It is not necessary to refer to the other counts, as there was a verdict of not guilty upon them.

The jury returned a verdict of guilty upon each of the first three counts. The court are all of opinion that this must be deemed to have been a mistrial. But'one offence was charged, and the jury should have been instructed to return a general verdict of guilty or not guilty upon the whole indictment as for a single offence, which would have been in conformity with the long and well established practice in this Commonwealth; or they should have been instructed to return a verdict of guilty upon the count proved, if either was proved, and not guilty upon all the others. As the record now stands, the defendant corporation was charged with five distinct misdemeanors, of three of which it was found guilty, and of two of which it was found not guilty. The bill of exceptions, however, shows that but one offence was committed, and it is suggested that a nolle prosequi may be entered as to two of the counts and judgment upon the other. It is obvious that inasmuch as the several counts may be supported by different evidence, and as they are, at least to some extent, inconsistent with each other, it is impossible to determine which was proved, it being certain that all could not have been. The verdict must therefore be set aside.

Several questions were raised at the argument upon the sufficiency of the several counts of the indictment in the matter of form. In reference to the first count, whether it is sufficient in form, and, if not, whether the objection was open at the time of the trial, appear to the court, upon consideration, to be questions of much difficulty; and, as a new trial must be had upon other grounds, in the course of which these questions may not be material, no opinion is expressed upon it.

As to the third count, it does not allege gross negligence upon the part of the servants of the corporation, except by implicañon. , It charges that the death of the party was caused by the neglect of the servants to ring the bell or sound the whistle; but it does not charge that such neglect was gross , negligence on the Dart of the servants.

*382The learned judge who presided at the trial correctly instructed the jury that inasmuch as the first count of the indictment contained no charge of negligence on the part of the corporation, or of unfitness of its servants, that count could be sustained only by proof of gross negligence by its servants. Such gross negligence must be averred, if relied on. Mere neglect to ring the bell or sound the whistle may be the act either of the servant or of the corporation. If it be a corporate act, one done under the direction of the corporation, it is an act for which the corporation might be responsible under an indictment. If the third count is to be construed as alleging that the corporation directed that no bell should be rung or whistle sounded, it is not necessary to aver gross negligence, but any neglect is sufficient. If, however, it is to be construed as alleging only neglect of servants acting under the general authority of the corporation within the scope of their authority in the performance of their duty, then the act must be charged to be one of gross negligence of the servants. It is not perhaps entirely clear which is charged. The St. of 1871, c. 352, is not supposed by the court to intend to change the mode of charging the offence, so far as the acts of the defendant or its servants are concerned; whether or not it is necessary to change the form of pleading as to the conduct of the person killed, it is unnecessary to inquire.

In the second count, in which the collision is charged to have been at the intersection of a public highway with the defendant’s railroad, there is no charge that the bell was not rung or ;he whistle sounded. The bill of exceptions reports an instruction given upon the second count which we think must have been admitted by inadvertence. The instruction was, that if the jury were satisfied that the neglect on the part of the corporation to give the signals required by the St. of 1862, c. 81, contributed to the death of Keniston, they would be authorized to find the defendant guilty upon the second and third counts, if the person killed was not in fault according to the meaning of the law. But the second count did not aver the neglect.

Exceptions sustained.