Koppala v. State

Scott, Justice. The plaintiffs in error, who were defendants below and who will be so designated here, were charged by information, tried, found guilty of a misdemeanor as defined by Section 2572, R. S-, and each sentenced to pay a fine of $200, and one-half the costs taxed at $145.85, and to be confined in jail until such fine and costs be paid or until otherwise discharged by due course of law. 1. It is assigned as error that the court erred in over 7 ruling defendant’s motion for a new trial. This assignment brings before this court all of the grounds set up in the motion, and they are entitled to consideration unless from a defective record the jurisdiction to do SO' has not been conferred. The grounds of the motion are as follows: “First, that the verdict of the jury is not sustained by the evidence; second, that the verdict of the jury is contrary to the evidence; third, for errors of law occurring at the trial of the said cause, in this * * The alleged errors are voluminous and relate to the admission of evidence over the objection of the defendants, with the exception of the objection to the giving of the.following instruction, viz.: “The court instructs the jury that under the laws of the State of Wyoming, any miner, workman or other person who shall intentionally enter any place of a mine against caution, or in disobedience to any order given in carrying out the provisions of law relative to coal mining, or who does any other act whereby the lives or the health of persons or security of a coal mine or the machinery employed therein is endangered, is guilty of a misdemeanor; if, therefore, ypu find from the evidence in this case, beyond a reasonable doubt, that the defendants, Neis Koppala and Isaac Lampe, were miners employed in the Hanna Coal Mine No. 1 at Hanna, Carbon County, State of Wyoming, that the said defendants against caution and in disobedience of orders given in carrying out the provisions of law relating to coal mining, and that the said defendants entered portions of — 409 — said Hanna Coal Mine No. 1 and did thereby endanger the lives and health of persons employed in said mine, and the machinery employed therein, you should find the defendants guilty.” “Fourth, that the verdict of the jury is contrary to the law; wherefore the said defendants, Neis Koppala and Isaac Lampe, pray the court that the said verdict heretofore rendered in the above and foregoing entitled cause be set aside and that the defendants be granted a new trial in said, cause.” It is apparent that the consideration of each or either of the first, second and fourth grounds of the motion requires all of the evidence taken upon the trial to be included in the bill of exceptions. This being a criminal case is governed by the rules prescribed by the code of criminal procedure. Section 5377, R. S., provides that “if, exceptions be taken to the decision of the court on overruling a motion for a new trial because the verdict is not sustained by sufficient evidence, or is contrary to law, the bill of exceptions must contain all of the evidence, and the taking of all bills of exceptions shall be governed by the rules established in civil cases.” The third ground must be based upon an exception taken at the time the decision or ruling complained of was made. (Sec. 3740, R. S.) And such exception should be preserved and brought into the record by the bill. (Sec. 3743, R. S.) Attached to the bill of exceptions, but not preceding the authentication by the judge and not, therefore, included in the bill, is what purports to be a transcript of the evidence certified to by the stenographer as being “full, true and correct copy of all shorthand notes and testimony taken by me in the case of The State of Wyoming v. Nels Koppala and Isaac Lampe.” This transcript is not referred to in the bill, nor is it in any way identified or authenticated so as to make it a part thereof. The case is, therefore, here upon a record which does not include the evidence given upon the trial and this court under the statutes cannot review those ques — 410 — tions, the determination of which would require a consideration of evidence and exceptions which have not been preserved and brought into the record as required by the statute. The motion for a new trial is based upon exceptions to alleged erroneous rulings of the court, and, although such motion is required to be incorporated in the bill of exceptions, it is not evidence of such rulings. The bill, properly allowed and signed, in so far as the motion is concerned, conveys the motion with the ruling upon it and the exception thereto into the record. The grounds stated therein are not of themselves evidence of error, but the court must look to other parts of the record of what occurred upon the trial, to determine whether a party has just cause for complaint and when the errors complained of should be, but are not, incorporated in the bill, other than by a mere recital in the motion, they cannot be here considered. The motion cannot stand as and for other material parts of the bill which have been omitted, nor can an exception to the ruling thereto be a substitute for an exception to a ruling-taken at the time and in the course of the trial and upon which the'motion is predicated. It is upon the exception taken at the time of the ruling complained of that the motion is based and upon which the right to a review is given after the same-has been brought to the attention of the trial court by such motion and then only when the exception has been properly brought into the record. The exception to giving the instruction complained of is, however, .in the bill. The instruction sets forth all the elements of the offense as defined by the statute. While the word intentionally is used in the statute, such word only imports knowledge of the nature of the act at the time it was done by the accused — that it was done knowingly. While the statute requires that the act be done intentionally, and the word is omitted in the latter part of the instruction, jret words of similar import are used. If the defendants were employed in the mine and committed the-act charged — 411 — against caution and in disobedience of orders, this court cannot say, in the absence of the evidence as to how given or what the caution was, or as to how the order or rule disobeyed was given, and such being the case, it will be presumed that the evidence given at the trial was sufficient to show that the act was done with knowledge of the danger, and, therefore, intentionally done. In- the absence of the evidence we can only determine whether the instruction would be proper under any state of facts that could have been proven under the issue. (Downing v. State, 10 Wyo., 373.) We think there is no doubt that upon the issue there might have been evidence properly before the court which would justify and constitute a sufficient basis for giving this instruction, or if error was committed in giving it, such error may, upon the evidence, have been harmless and, therefore, not prejudicial. The exception to the instruction brings before this court defendants’ contention that the statute under which the prosecution was had is unconstitutional. Section 2572, Revised Statutes, was originally enacted by the first state legislative assembly as Section 7, Chapter 80, 'Session Laws, 1890-91. The act is entitled, “An act creating the office of State Inspector of Coal Mines, fixing said inspector’s salary and prescribing his duties; also providing for the proper ventilation of coal mines and for other purposes; and providing for appropriating moneys for a contingent fund for said office.” Section 7 of the act under which the information is filed provides that: “Any miner, workman or other person who shall intentionally injure any shaft, lamp, instrument, air course or brattise, or obstruct or throw open air ways, or carry lighted pipes or matches into places that are worked by safety lamps, or handle or disturb any part of the machinery, or open a door and not close it again, or enter any place of the mine against caution, or disobey any order given in carrying out the provisions of this chapter, or do any other act whereby the lives or health of persons or security of the mines or machinery is endangered, shall be — 412 — deemed guilty of a misdemeanor, and may be punished in a manner provided in Section 21 of this act.” It is urged that the provisions of this section do not come within the scope of the title; that the title embraces two subjects; and that the act falls within the inhibition of Section 24, Article III, of the constitution, which provides that, “No bill, except general appropriation bills and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject is embraced in any act which is not expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” In discussing this question it is unnecessary to decide whether other parts of the act are unconstitutional, for by the constitution parts of an act which do come within the provision and scope of the title will not be disturbed unless the whole act is void as embracing and relating to more than one subject and so expressed in the title. In reading the various sections and provisions of the act it is apparent that the object of the Legislature was to provide for the safety of coal mines and employes therein. That is the main subject of the act, and the details and methods provided are in furtherance'of that object. Provisions are made as to how a mine shall be ventilated to avoid danger, and it is made the duty of the owner or agent to maintain ample means for ventilation; as to the amount of pure air necessary to be admitted to the mine for each person actually engaged therein; as to air passages to rid the mine of dangerous and noxious gases; that ever) place where gas is known to exist shall be examined,-and it shall be unlawful for any miner to enter any mine or part of a mine generating fire-damp until it has been examined and reported safe, except when permitted to do so for the purpose of making it safe. In furtherance of this general purpose of keeping the mine in a safe condition, it is also provided that a State Inspector of Coal Mines shall be appointed, whose duty is to examine coal mines, to see that the provisions of this chapter are carried — 413 — out and to make record of such examinations showing the condition in which he finds them, especially in reference to ventilation and drainage, the number of mines in the state, the number of persons employed in each mine, the extent to which the laws are obeyed, the progress made in the improvement sought to be secured by the passage of this chapter, the number- of accidents and deaths resulting from injuries received in and about the mine, with cause of such accident or death — said report to be made quarterly. It is unnecessary to enlarge further upon the provisions of the act. Enough has already been said to show its object and purpose. The provision for the appointment of the coal mine inspector and providing his duties were all in aid of and in furtherance of the same general purpose by securing the services of one competent to see that the mines were kept in proper condition, so as to preserve the health and lives of those who are employed therein. The section under which the defendants were prosecuted was in aid of and in furtherance of this general purpose, and to prevent any interference with the performance of the duties exacted of the mine owners or their agents and the State Coal Mine Inspector with reference thereto. In construing án act the constitutionality of which was assailed upon the same ground this court, Groesbeck, C. J., delivering the opinion, said: “The act is not invalidated * * * so long as the subjects of the Legislature are congruous, cognate or germane and in furtherance of the general subject of the enactment, even though the act may authorize many things of a diverse nature to -be done. The constitutional provision must bé reasonably construed, for a narrow construction would impede legislation to such a degree that none but a precisian could successfully draft a valid enactment. If the unities of legislation are preserved, and the distinct provisions are but parts of a whole and essential to the whole, the constitutional requirement is met, as the integers of statutory law are not enumerated by the constitution, and, therefore, the Legislature is at liberty to make such divisions of the general subject — 414 — of legislation as it thinks proper, if it confines each statute to a single subject, and the subordinate subjects are restricted to the legitimate offspring of the main subject.” (In re Boulter, 5 Wyo., 329.) The same rule was announced by this court in an earlier case. (In re Fourth Judicial District, 4 Wyo., 133.) We are unable to discover under the rules of construction adopted by this court in the foregoing cases any incongruity between the title and the subject covered by Section 7 thereof, but, bn the contrary, we are of the opinion that the latter comes within the scope and provision of the title, and further that under the rule of liberal construction the title embraces but one general subject. It is urged that the act is unconstitutional as being a delegation of power. The act aims to secure the safety and prescribe rules for the guidance and conduct of those engaged in coal mining and which is known to be attended with much danger. While it would be lawful for an employe to enter a part of the mine at one time, it would be unlawful to do so at another. The law cannot nor could the Legislature determine the existence of gas or fire-damp- in any room of a mine or its unsafe condition at any particular time. The law is not suspended nor enforced at the whims of the mine superintendent or the mine-boss. It is continually in force and it is a combination of conditions and the intentional acts of one with reference thereto that constitutes the statutory offense. It is in the nature of quarantine or health laws, where the health officer determines certain questions of fact and upon which he is authorized, if necessary for the public safety, to establish a quarantine. So in the case before us the law enjoins those in authority' upon the actual or supposed unsafe condition of any part of a mine to stop all mining in and close the mine in part or in whole as may be necessary until it is rendered safe and secure against danger. The law recognizes that to enter it under such circumstances is dangerous to the one so entering, as it is to the security of the mine and machinery and — 415 — everyone in it, and when in such condition or supposed condition it should not be entered except for repairs. (Sec. 6 of the original act; Sec. 2570, R. S-) There is nothing in the act but what is analogous to provisions contained in health laws and for the public safety, usually referred to as laws in the nature of police regulations, and in that sense there is no delegation of legislative power. (8 Cyc., 863.) 2. It is urged that the information fails to allege the ownership of the mine or give the names of those employed in the mine whose lives and health were endangered by the acts of the defendants. While the information might have been more specific in some respects, we do not think it insufficient for that reason. The gist of the offense is the intentional entering a coal mine by one under such circumstances as to endanger the health and lives of those employed .therein, and the security of the mine and machinery of the same. It is, of course, necessary to designate or state what coal mine, but the ownership thereof is not necessarily the only way of describing it. If it was owned by the defendants, proof thereof would not as in larceny entitle them to acquittal, for the gist of the crime is the violation of a statutory rule which is in the nature of a police regulation. Nor was it necessary to give the names of all of those whose lives and health were endangered. It appears from the information that'the defendants themselves were employed in the mine at the time and the names of these two at least of those employed therein are given whose lives were endangered by their own act, and it is also alleged that by such act they endangered the security of said mine and the machinery used therein. It is sufficient in such case to allege such descriptive matter as will inform the accused of the nature of the offense charged and enable him to prepare to meet the same, and this rule is satisfied when upon conviction or acquittal one is able to plead the same in bar of a future prosecution for the same offense. This right is certainly secured to the defendants under this information. The objection goes to the form and manner of charging — 416 — the offense and not to the substance, and the defect, if any, is apparent upon the face of the record. Such being the case, it could only be reached by a motion to quash. (Sec. 5322, R. S.; Wilbur v. Ter’y., 3 Wyo., 268.) Having failed to make such' motion and having pleaded to the merits they have waived such defect, if any. (Sec. 5326, R. S.) The other assignments of error as already stated are predicated upon matter which should be, but is not, incorporated in the bill of exceptions, and in the absence of which this court has no jurisdiction to review. No prejudicial error appearing in the record, the judgment will be affirmed. • Affirmed. Potter, C. J., and Beard, J., concur.