State v. . Divine

Smith, C. J., (after stating the case). The special verdict stops without the essential finding, that the accused is or is not guilty, as in the opinion of the Court, upon the recited facts, they constitute or do not constitute .the criminal act charged. The question of the defendant’s guilt is to be decided, under, his plea, alone by the jury in cases requiring a jury, and these include all criminal accusations, except in certain petty misdemeanors, by express provision of the Constitution, Art. I, Sec. 13. The special verdict, to be sufficient, must find, subject to^ the opinion of the Judge upon the law, the defendant guilty or not guilty, or it is legally no verdict at all. State v. Padgett, 82 N. C., 544, and cases cited in the opinion. The proper course, then, would be to set aside the finding and direct a venire de novo in the Court below, unless it can be seen, upon the face of the proceedings, that the prosecution cannot be successfully maintained; and this is the de-fence set up on behalf of the accused. It is insisted that the facts charged in the warrant do not constitute a criminal offence, and cannot be made such under the act, without infringing upon the provisions of the organic law, and taking from the accused some of the immunities and personal securities which it contains for the protection of the citizen against the exercise of legislative power. The objections to the validity of the legislation are pointed out and forcibly presented in the brief of defendant’s coun *782 sel, with an array of numerous rulings in their support, as follows: 1. In its whole structure and manifest purpose it creates out of a private civil injury a public prosecution, to subserve the interests of the injured party, and to be put in operation or arrested at his instance and elebtion. 2. It assumes a criminal liability to have been incurred by an officer of a railroad corporation, without his concurrence in the act of the subordinate, and, assuming negligence and guilt, puts him on the defensive, and requires him to repel the presumption, when he in no manner participated in what was done. 3. It undertakes to drive the accused to an adjustment of the claim for damages by assenting to a reference to arbitration, and to deprive him of his constitutional right to be tried in the Courts of the State — tribunals provided under the Constitution — and by a properly constituted jury, acting under a Judge. 4. It places at the election of the claimant the institution of the prosecution, which otherwise is suspended, by making a proposition for a reference. 5. It discriminates, without apparent difference, between counties and railroads, giving partial operation to a law, general in its provisions and equally applicable to all, by which the same act is rendered criminal in one locality which is not so in another, and raising out of an act done by one employee a presumption of guilt against another employee, who did not, in any way, participate in it. We do not perceive any difficulty in. the act of 1856-57 {The Code, §2326,) raising a presumption of negligence on the part of the company from the fact of killing or injuring stock, in a civil suit for reparation, brought within six months thereafter, as is explained in the opinion in Doggett v. Railroad, 81 N. C., 459, and whose validity has not been questioned in the numerous cases which have been before *783 the Court. But the present case passes far beyond the limits of that enactment, in fastening a criminal responsibility, not upon the principal whose agent does the injury, but upon a co-employee in the same general service, and this not upon all, but specially upon railroads that run through or in particular counties. We do not say that there may not be local legislation, for it is very common in our statute books, but that an act divested of any peculiar circumstances, and per se made indictable, should be so throughout the State, as essential to that equality and uniformity which are fundamental conditions of all just and constitutional legislation. Looking at the indictment it will be seen that the only material allegations are, that the prosecutor’s cattle were killed by a moving train on the road of the company of which the defendant is superintendent, without connecting him with the act; and scarcely more definite is the special verdict. Do these words impute crime, and upon mere proof of these facts is the charge established, and must the defendant be convicted unless he repels the negligence which the statute presumes in the subordinate employed in managing the train ? The very question involves an answer, unless all the safeguards thrown around one accused of crime are disregarded, and he left without their protection. The defendant was not on the train when the accident occurred, and has no personal relation to it except such as results from his position as a higher officer of the road — making the offence one by construction. Judge Cooley, in his work on Constitutional Limitations, at page 309, referring to a trial for criminal offences of different grades, uses this impressive language: “ The mode of investigating the facts, however, 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 *784 the government cannot dispense with,” meaning, as we understand, that the charge must go before the jury, and the guilt of the accused proved to them, with the presumption of innocence until this is done. In Cummings v. Missouri, 4 Wall., 328, Mr. Justice Fields, referring to certain enactments in that State, says: “The clauses in question subvert the presumption of innocence, and alter the rule of evidence which, heretofore, under the universally recognized principles of the'common law, have been supposed to be fundamental and unchangeable.” “ But I have no hesitation in saying,” remarks Selden, J., in Wynehamer v. The People, 13 N. Y., 446, “that they (the Legislature! cannot subven that fundamental rule of justice which holds that every one shall be presumed innocent until he is proved guilty.” The case is not analogous to that wherein for civil pur-‘ poses negligence is inferred from the fact of killing stock, and requiring matters in excuse to be shown, which lie peculiarly within the knowledge of the agent who perpetrated the act, or controls the running of the engine when it is done; nor to the statute (The Code, §1005,) which makes the having about the person one of the deadly weapons forbidden to be carried, or worn, prima Jade evidence of concealment, for this is the sole personal act of the party, of the. consequences of which he is aware, and because a small weapon, if concealed, would be almost impossible of proof direct, while the possession of such is intimately and naturally connected with the secret carrying and furnishes strong evidence of the fact. In San Manteo v. Railroad, 8 Am. & Eng. R. R. Cases, 10, in construing the Fourteenth Amendment to the Constitution of the United States, it is said: “Whatever the State may do, it cannot deprive any one within its jurisdiction of the equal protection of the laws. And by equal protection of the laws is meant equal security under them, by every *785 one on similar terms in his life, his liberty, his property and in the pursuit of happiness.” Substantially the same doctrine is announced, and by the same eminent Judge (Mr. Justice Field) in Barlier v. Connelly, 113 U. S., 31, in which he adds: “that no greater burdens should be laid upon one than are laid upon others in the same calling and condition.” From what has been said, it results that the legislation in question has not the sanction of the Constitution, and cannot be upheld as within the competency of the law-making power to enact. We have gone into this, inquiry in order to settle the question of the validity of the statute in the application to the case before us, and because it will practically put an end to the litigation. But for the defect in the special verdict we are compelled to direct that it be set aside for further proceedings in the Court below. Reversed and special verdict set aside.