People v. Clark

14 N.Y.S. 642, 8 N.Y. Crim. 179

Opinion

Van Brunt, P. J.

The defendants herein having been indicted for a misdemeanor, under chapter 616 of the Laws of 1887, as amended by chapter 189 of the Laws of 1888, and chapter 76 of the Laws of 1889, by an indictment consisting of-seven counts, this motion is made to set aside the fifth and' seventh counts of said indictment. The other counts accused the defendants of a misdemeanor, and alleged that the New York, New Haven So Hartford Railroad Company is a corporation organized and existing under the laws of the state of Connecticut, and operating a steam railroad of more than 50 miles in length, 26 miles of which are within this state, and some portion thereof within the city and county of New York; and some of them alleged that the defendants were the president and directors of said corporation, and as such directors then and there had the charge, control, and supervision of the equipment, management, and operation of said railroad, and of the trains and cars operated and used by said railroad for the purpose of transporting passengers, and that said cars were heated by means of stoves kept in said cars, none of them having been equipped with an apparatus to heat by steam, hot water, or hot air from the locomotive hauling or drawing the same, or from a special car, against the statute in such case made and provided. Other counts, after alleging the operation of said railroad by the New York, New Haven & Hartford Railroad Company, averred that the defendants unlawfully heated the passenger-cars of said steam railroad by means of stoves kept in said cars, against the form of the statute, etc., or aided and abetted in the commission of said crime and misdemeanor. The fifth and seventh counts accused the said defendants of the same misdemeanor, simply alleging that the defendants operated and maintained the railroad, and that they heated the cars by means of stoves, against the form of the statute, etc. This motion is now made to strike out the fifth and seventh counts of the indictment, upon the ground that there was no evidence before the grand jury to support the same; and the only question which was presented to the court upon this application was with regard to the power of the court to entertain the motion; and attention was called to sections 312 and 313 of the Code of Criminal Procedure.

Those sections are as follows: “Sec. 312. In answer to the indictment, the defendant may either move the court to set the same aside, or may demur or plead thereto. Sec. 313. The indictment must be set aside by the court in whichifche defendant is arraigned, and upon his motion, in either of the following cases: When it is not properly indorsed; when improper persons have been permitted to be present during the session of the grand jury.” And it is urged that, there being no provision for the making of the motion now before the court, the court has no power to entertain the same.

In the case of People v. Sharp, (decided in April, 1887,) I expressed the opinion, to which I still adhere, that, applying all the ordinary rules of statutory construction to the case at bar, the objection is well taken. The Code of Criminal Procedure was intended to form a complete code of criminal practice, and was designed to supersede all forms of procedure which had previously existed, and, it having legislated upon the subject of when the indictment must be set aside upon motion, it was to be presumed that it was the intention of the legislature that that should be exclusively the method by which, and the causes for which, such relief could be granted. That this was the true principle of construction was expressly recognized in the ease of People v. Petrea, 92 N. Y. 128, in which the court say: “The Code, by defining the cause for which the indictment may be set aside, must, by the general rule of construction, be held to exclude the entertaining of the motion for other causes than those specified. The intention of the Code was to destroy technical defenses to indictments not affecting the merits, as is apparent from the sections cited as well as the provisions relating to amendments and proceedings upon the trial. Code Grim. Proe. §§ 293, 362.” Since the decision of that case, however, the question has come up in various forms, and the courts, almost without exception, have, because of the manifest injustice and hardship of the application of this rule, amended the Code by judicial decision giving to the court the power to entertain such motions in cases not named in the Code; the argument being that, as a charge does not become an indictment until it is legally found, the court must, of necessity, be able to determine whether a paper placed upon its flies is an indictment or not. Consequently., motions have been entertained to set aside an indictment where the constitutional privileges of a defendant have been invaded by calling him before the grand jury, and compelling him to testify, (People v. Singer, 5 N. Y. Crim. Rep. 1;) and upon the ground that the grand jury had been improperly influenced by communications made to them, and that the minutes of the evidence given before them showed that they had received and acted upon incompetent and illegal evidence in finding the indictment, (People v. Selleck, 4 N. Y. Crim. Rep. 329.) And in the case of People v. Briggs, 60 How. Pr. 17, an indictment was quashed for the reason that defendant’s wife was permitted to testify against him before the grand jury, contrary to law.

The fact that the provisions of the Code, if construed according to the well-established canons of statutory construction, would in many cases be subversive of justice, and deprive defendants of constitutional and statutory rights, and would enable a grand jury by its indictment to work the grossest injustice, has impelled the courts to entertain these motions, and to give defendants those rights which they had always, prior to the adoption of the Code, enjoyed. In all these cases it has been assumed, and rightly so, that sound reasons of public policy demand that the court should have the power of passing upon preliminary questions respecting the legality of indictments, and that, to prevent oppression, wrong, and outrage, it is absolutely necessary that, over all the preliminaries preceding a trial, there should be the same judicial control as of the proceedings upon the trial itself. This view is to some extent supported by the case of People v. Rugg, 98 IT. Y. 537, in which case a motion was made at the trial to set aside an indictment upon the ground that it was not found by a legally organized grand jury. The court discussed the disposition of this motion upon its merits, never for a moment suggesting that under the provisions of the Criminal Code no such motion could be entertained.

A reference to one. or two adjudications (.which are only representatives of a class) under the Codes governing the practice in civil actions will further illustrate how far the courts have gone in their efforts to remedy the defective legislation contained in these Codes. It has often been held that the court has inherent power over the procedure in actions pending before it, and over the judgments rendered by it, independent of the provisions of the Code, where it is necessary that such power should be exercised in furtherance of justice. In the case of Christal v. Kelly, 88 N. Y. 290, it is expressly held that the power to amend process and pleadings is inherent in the court as part of its ordinary jurisdiction; section 173 of the Code, relating to amendments, being held to be declaratory only. The case of Hatch v. Bank, 78 N. Y. 490, is a striking illustration of the extent to which this claim of inherent power has been carried. Section 724 of the Code of Civil Procedure provides that the court may, at any time within one year, relieve a party from a judgment. A motion was made, in the case cited by the plaintiff, nearly three years after a judgment had been entered and paid, to set the same aside, and he be allowed to claim an additional sum, which was granted, and the order was affirmed by the court of appeals upon the ground that the court, independent of the Code, had an inherent power over its own judgments, and should exercise it in aid. of justice. Many other cases might be cited of the exercise of power over judgments and proceedings without warrant derived from the Code, but these seem to be sufficient. I think, therefore, that the consensus of authority shows that the hardships of the case have impelled a departure from the ordinary rules of construction, and that courts will entertain motions of the description now before the court, although not distinctly authorized by the provisions of the Criminal Code. Therefore the question presented upon this motion is whether the counts of the indictment against which the motion is directed should be striken out, upon the ground that they were found not only without evidence to support the same, but contrary to the evidence which was introduced before the grand jury. It appears that these defendants were indicted because of their official connection with the New York, New Haven & Hartford Railroad Company; and that the New York, New Haven & Hartford Railroad Company was operating the railroad in question as a foreign corporation. There was no evidence whatever that these defendants were in any way connected with the operation of this railroad, except as directors of said corporation. As individuals or persons they did not operate and maintain the railroad. It belonged to the New York, New Haven & Hartford Railroad Company, a foreign corporation, and the sole connection of these defendants with the maintenance and operation of this railroad Was as the officers of said corporation. The evidence failed to show any other connection of these defendants with the operation of the railroad in question, and entirely negatived the idea that they, as individuals only, were maintaining and operating the railroad as alleged in the indictment. It is further to be observed that, by the very language of the indictment itself, but one offense is referred to, because in each count after the first it is spoken of as the same misdemeanor. This being the condition of the evidence, and it being manifest that the various counts of the indictment were directed against but one offense, and there being no evidence that these defendants as individuals only were operating and maintaining the road, the counts which are the subject of this motion were evidently found not only without evidence, but directly against the evidence, showing that their relation to the railroad in question was that of directors and officers of such corporation. The grand jury have no power to find an indictment without evidence, and they are only authorized to find an indictment when all the evidence before them, taken together, is such as, in their judgment, would, if unexplained or uncontroverted, warrant a conviction by a trial jury. The motion should therefore be granted.

ON DEMURRER TO INDICTMENT.

In June, 1887, the legislature passed an act entitled “An act to regulate the heating of steam passenger-cars, to provide for the placing of guards and guard-posts on railroad bridges, and trestles and the approaches thereto,” by which it was enacted as follows: “Section 1. It shall not be lawful for any steam railroad doing business in this state, after the first day of May, eighteen hundred and eighty-eight, to heat its passenger cars, on other than mixed trains, by any stove or furnace kept inside of the car, or suspended therefrom, except it may be lawful, in case of accident or other emergency, to temporarily use such stove or furnace with necessary fuel: provided, that in cars which have been equipped with apparatus to heat by steam, hot water, or hot air from the locomotive, or from a special car, the present stove may be retained, to be used only when the car is standing still: and provided, also, that this act shall not apply to railroads less than fifty miles in length, nor to the use of stoves of a pattern and kind to be approved by the railroad commissioners for cooking purposes in dining-room cars. Bee. 2. After November first, eighteen hundred and eighty-seven, guard-posts shall be placed in the prolongation of the line of bridge trusses, so that in case of derailment the posts, and not the bridge trusses, shall receive the blow of the derailed locomotive or car. Sec. 3. Any person or corporation violating any of the provisions of this act shall be liable to a penalty of one thousand dollars, and to the further penalty of one hundred dollars for each and every day during which such a violation shall continue. Sec. 4. Upon application of any railroad covered by the provisions of this act, the board of railroad commissioners may approve of any proposed safeguard or device to be. used under the provisions of this act, and thereafter the railroad using such safeguards or device so approved shall not be liable to any of tile penalties prescribed by this act for a violation thereof in regard to any such safeguard or device. Sec. 5. The violation of any of the provisions of this act will be deemed a misdemeanor. Sec. 6. This act shall take effect immediately.”

In 1888 this act was amended, extending the time in which it should not be lawful to heat the passenger-cars as specified in said first-mentioned act; and authority was also given to the board of railroad commissioners to further extend the time for a period not exceeding one year from the 1st of November, 1888. In 1889 the act of 1887, as amended in 1888, was further amended by the extraordinary provision that it should not apply to “the cars of foreign railroad companies incorporated without the jurisdiction of the United States hauled upon tracks in this state for a distance of less than thirty miles;” thus granting to a foreign corporation privileges which were denied to the citizens of our own and of adjoining states. In 1890 the statute was further amended in some immaterial particulars. In March, 1891, the defendants were indicted for a misdemeanor, because of an alleged violation of the statute in question, in the month of February preceding, in the heating of passenger-cars of the New York, New Haven & Hartford Railroad by means of stoves. This indictment originally contained seven counts, two of which (the fifth and seventh) have been withdrawn by the district attorney; and to each and every of the remaining five counts in the indictment the defendants have demurred upon the ground that the facts stated in neither of said counts constituted a crime; and upon the further ground that the facts therein did not constitute a crime as against the defendants, or any of them; and upon the further ground that more than one crime is charged in the indictment; and upon the further ground that the indictment in form does not conform to the Code of Criminal Procedure.

It is not necessary, in the disposition of this demurrer, to consider in detail the five counts in the indictment, because it will appear upon an examination thereof that it is therein alleged that the New York, New Haven & Hartford Railroad Company was a corporation duly organized under the laws of the state of Connecticut, and maintained, used, and operated the railroad.in question, which was more than 50 miles in length, and 26 miles of which were within the state and 10 miles within the city and county of New York; and that the defendants are therein individually charged by the counts of the indictment with doing the forbidden act, or with causing or procuring, suffering and permitting, it to be done, or with directly counseling, commanding, inducing, and procuring it to be done, or with being concerned in or with aiding and abetting in the doing of the act upon said railroad.

It is urged that because of the language of the statute which provides that it shall not be lawful for any steam railroad doing business in this state to heat its cars, etc., and because a steam railroad is an inanimate object, destitute of will, is not a person, and cannot perform any act whatever, the attempt to impose a duty upon such an inanimate object, or to impute to it any act with a view to making such act unlawful, is insensible, and consequently not effectual for any purpose. I think that an examination of the statute raises no such difficulty as that which is suggested in the position above taken. The legislative intent seems to be plain, and to the effect that no railroad in this state shall be operated with cars heated in violation of the act in question. By whom said railroad is operated is entirely immaterial; the offense being committed when the act is committed, no matter by whom. This view of the legislative intention is peculiarly emphasized by the provisions of section 3 of the act, which provides a money penalty for its violation. That section states that any person or corporation violating any of the provisions of this act shall be liable to a penalty of $1,000, and to the further penalty of $100 for each and every day during whicli such violation shall continue. Here it is clear that the operator of the railroad, whether a person or a corporation, is alone liable for the penalty. This is manifestly the intention of the act. But when the legislature came to provide that the violation of the provisions of the act should be a misdemeanor, they limit it to no persons or corporations: They simply say: “ The violation of any of the provisions of this act shall be a misdemeanor;” not that any person or corporation operating a railroad violating this act shall be guilty of a misdemeanor, but that any violation of this act by anybody shall be a misdemeanor,—language much broader than that contained in section 3, above quoted.

But it is urged that the most that can be imported in the act would be a prohibition against any corporation or persons operating this road from doing the prohibited act, and that this affords no justification for an attack upon the agents or servants of the corporation. It is said it is made unlawful for such corporation, but not for any other person,—not for a porter or employe or for a director,—to heat the cars in violation of the act. I think that the consideration of a few elementary principles governing the responsibility of principals and accessories (so called) for the commission of misdemeanors, and of agents for acts done in their representative capacity, and of directors and agents of corporations for acts done by the corporation, will show that this position is not well taken. It was long the rule of law that corporations could not be indicted for a misdemeanor; and it seems to have been the practice in such a ease to indict the persons who were individually responsible for the acts resulting in the violation of the law (1 Archb. Grim. Pr. & PL pp. 8, 9.) Thus, in the case of Rex v. Medley, 6 Car. & P. 292, a conviction for maintaining a nuisance by a gas company was sustained against the executive officers, superintendent, and engineer of the company. The reason that no indictment could formerly be found against a corporation for a crime seems to have been founded, although some writers give a different reason, entirely upon the fact that, as a defendant could not then appear by attorney or agent, the indicted corporation could not be brought into court. It could not come itself into court, and it could not appear by an agent or attorney, and consequently there was no way in which the court could proceed against the corporation. But as soon as parties were permitted to appear ira some courts by attorney, although not so permitted in others, it was held that a corporation was liable to indictment in a court in which they were not allowed to appear by attorney, the practice being, when the corporation was indicted in such a court, to remove the indictment by certiorari into a court where such corporation might appear by attorney, and there be called upon to plead. Reg. v. Railroad Co., 9 Car. & P. 469. In the case cited' the corporation had been indicted at the assizes, where defendants were not. permitted to appear by attorney; and the indictment was removed by certiorari to the queen’s bench, where they could appear by attorney. And upon the motion to quash the indictment, as not maintainable against a corporation, the court refused to quash upon the ground that a corporation aggregate might be indicted by their corporate name. 3 Adol. & E. (H. S.) 223. And it has since been the law that a corporation might be indicted for a. misdemeanor.

It having been established, that a corporation may be indicted for a misdemeanor, the next question presented is, can any person or persons be guilty of a criminal violation of a statute directed against such corporation ? I think that any person or persons participating in the violation of the statute by the corporation may, under our statutes, be indicted as principals, either because they have directly committed the act, or have aided and abetted in such com¡mission. In hostility to this view, in respect to the particular statute under •consideration, attention is called to certain other legislation which it is •claimed shows that where it is intended that any person or persons shall be guilty of a misdemeanor, for which the statute .declares a corporation operating a railroad shall be responsible, he or they have been specifically named, and that the want of such language shows an intention that the corporation alone shall be subject to indictment. Thus chapter 439 of the Laws of 1884 is a-eferred to, by which it was enacted that steam railroads shall lay switches of •certain kinds., and that for each switch laid in violation of the provisions of Saw the corporation, person, or persons operating said railroad shall be liable ¡to a penalty. Another section .makes provision that every steam railroad shall erect warning signals, and, in the same language as before, puts a penalty for failure upon the corporation, person, or persons operating such railzroad; it being claimed that the only person liable under this act is the corporation operating the road, if it is operated by a corporation, or the natural ¡person or persons operating it, if no corporation operates it. This is undoubtedly correct, because the only penalty attached to a violation of the law ás of a pecuniary nature, and likens it to the provision of section 3 of the act under consideration. Attention is also called to another section of said act, which expressly imposes a penalty upon the engineer for failure to stop at cross roads. This, again, is a pecuniary penalty, and is only incurred by ¡the persons mentioned in the statute. So with the other provisions of the act in question.

We are also referred to chapter 524 of the Laws of 1889, which requires all persons and corporations operating any line or lines of railway to use automatic self-couplers; and provides that any person or corporation operating a line of railroad by steam in this state, who shall fail or neglect to comply with its provisions, shall be guilty of a misdemeanor, and, on conviction, shall be punished by a fine. In this case the legislature thought it necessary (as it undoubtedly was) to provide for the protection of employes by inserting a clause to the effect that employes should not be deemed guilty and subject to punishment under this act. Although the legislature, in the act East cited, only provided that any person or corporation operating a line of ¡railway should be guilty of a misdemeanor, yet, recognizing the well-established principle (to which attention will hereafter be called) that even under such circumstances employes would be liable as agents, they expressly excluded such liability, there being a criminal liability in this act which did not •exist in the act previously cited. Attention is also called to the provisions •of the Penal Code, in which there are enactments against individuals connected with corporations, but which contain no provisions against the corporations themselves. But we do not see how these enactments in any way affect the question under discussion, as they afford no guide whatever to the legislative intention in respect to the construction of an act such as is now under consideration. It is an elementary principle that in misdemeanors there can Ibe no accessories, and this was incorporated into the Penal Code in section 31, which is as follows: “A person who commits or participates in an act which would make him an accessory if the crime committed were a felony is a principal, and may be indicted and punished as such, if the crime be a misdemeanor;” this section being but a simplification of the rule laid down in Hale’s Pleas of the Crown, (volume 1, p. 613,) where he says: “In cases that are criminal, but not capital, as in trespass, mayhem, or prcemunire, there are aio accessories, for all the accessories before are in the same degree as principals.” The same author states that -“as to felonies by act of parliament regularly, if an act of parliament enact an offense to be felony, though it mentions nothing of the accessories before or after, yet virtually and consequentially those that counsel or command the offense are accessories before, and those that knowingly receive the offender, are accessories after. ” Section 682 of the Penal Code extends this rule in regard to felonies to misdemeanors, (if it had not previously existed, which, however, seems to be the fact,) because it provides that when an act or omission is declared by statute to be a misdemeanor, and no punishment for aiding or abetting in the doing thereof is expressly prescribed, every person who aids or abets another in such act or omission is also guilty of a misdemeanor. Blackstone, in his Commentaries, (book 4, p. 34,) alludes to the fact that there are no accessories in crimes under the degree of felony. He says in high treason there are no accessories, but all are principals. The same acts that make a man accessory in felony make him a principal in high treason, upon account of the heinousness of the crime. Besides, it is to be considered that the bare intent to commit treason is many times actual treason, as imagining the death of the king or conspiring to take away his crown. And as noone can advise and abet such a crime without the intention to have it done, there can be no accessories before the fact, since the very advice and abetment amount to principal treason. In felonies there may be accessories except only in those offenses which by judgment of law are sudden and unpremeditated, as manslaughter and the like, which, therefore, can have no accessories before the fact. So, too, in larceny, and in all crimes under the degree of felony, there are no accessories either before or after the fact, but all persons concerned therein, if guilty at all, are principals; the same rule holding with regard to the highest and lowest offenses, though upon different reasons. In treason all are principals propter odium delicti. In trespass all are principals, because the' law qua de minimis non curat does not descend to distinguish the different shades of guilt in petty misdemeanors.

Thus it will appear that although the statute declaring an act or omission to be a misdemeanor makes no mention of aiders and abettors in the doing thereof, every person who aids and abets another in such an act or omission is also guilty of a misdemeanor, and such person aiding and abetting is guilty of a misdemeanor as a principal, and may be indicted and punished as such. In the case of Brockway v. People, 2 Hill, 558, it appears to have been decided that the renting of a house to a woman of ill fame, with intent that it should be kept for the purpose of public prostitution, was not an offense punishable by indictment, though it be so kept afterwards, upon the ground that it did not tend directly and immediately to the commission of the misdemeanor. Upon a reference, however, to the case of People v. Erwin, 4 Denio, 129, it will be seen that the authority of this case was absolutely denied, and that it was held that all those who did so abet the commission of a misdemeanor were principal offenders, and that one who demises a house with the intent that it should be kept, and which was accordingly kept, for the purpose of public prostitution, and who derived a profit from that mode of using the property, was punishable by indictment for a misdemeanor, and that the indictment should charge the defendant as keeper of a bawdy-house in the ordinary form. The court say: “In misdemeanors there are no accessories as there are in other cases, but all the guilty actors, whether present or absent at the time the offense was committed, are principals, and should be indicted as such.” In Brockway v. People this rule was not followed. The defendant was indicted for demising his house to be kept as a common bawdy-house, when the charge should have been that he kept the house. And it is said, by the opinion, that it was because of this defect in the indictment that the conclusion in that case was concurred in; and then the court say: “In this case the owner of the property, as well as the woman, has been directly charged with keeping the house. The indictment is right, and we think the "instruction given to the jury was substantially correct. The man who demises a house to be kept as a disorderly house, and which is so kept with his knowledge, especially where, as in this case, he derives a profit from this mode of using the property, may he called the keeper of the house, and be punished as such.” In the case of Lowenstein v. People, 54 Barb. 299, the case of People v. Erwin is approved. In the case cited, the defendant was tried, convicted, and sentenced upon an indictment containing four counts,—the first being for keeping a disorderly house; the second for keeping a gambli'ng-house; the third for keeping a bawdy-house; and the fourth for renting a house with intent that the same should be kept for the purpose of prostitution. The evidence given by the people tended to show that the defendant was occasionally in the block; that he received rent from some of the rooms, and that the inmates of different rooms of the house were prostitutes. It was shown on the part of the defendant that he did not own the house; that the same belonged to his wife, in whom the title was; and that all the defendant did was to act as her agent in collecting the rents for her. Upon the close of the evidence for the prosecution a motion was made, which the court granted, to quash the last count of the indictment; that is, the count for renting the house with intent that the same should be kept for the purpose of prostitution. At the close of the case for the defendant the counsel for the defendant moved his discharge, upon the ground that he was not the owner of the block of houses designated, but, at most, a mere agent in the renting and collecting rents of the tenants who occupied the block; another person being at the same time the absolute and separate owner thereof. This motion was overruled, and upon appeal the court, referring to the case of People v. Erwin, says that it decides that the owner of a house, who lets it to be kept and used as a house of prostitution, is to be deemed to keep such house, and is liable to indictment and conviction as the keeper of a bawdy-house; and that the principle of this rule applies to any person who is personally concerned in the keeping of such a house. In misdemeanors there are no accessories. All who procure counsel and aid or abet the commission of the crime are principals. The court further says that “ the defendant confessedly had the control of the premises in question, and knowingly rented the building for and permitted it to be used as a house of prostitution. It matters not in what capacity he exercised such control over the house; there are no.agencies in crime,”—the result of this decision being that, as the defendant did in fact personally commit the crime, he was liable therefor.

Thus we see that agents acting for principals are liable for offenses committed against the statute. Directors are but agents of a corporation, and if they personally commit an offense, or aid or abet in its commission, upon this principle they are clearly indictable as principals. But it is said this view is in hostility to numerous decisions holding that, where an act of the legislature creates a new offense, guilt for violation of the statute is limited to those against whom the prohibition is by the statute directed. And attention is called to the cases of State v. Gilmore, 24 N. H. 461; Queen v. Pocock, 17 Adol. & E. (N. S.) 34; Com. v. Demuth, 12 Serg. & E. 389; State v. Barksdale, 5 Humph. 154; and Kane v. People, 3 Wend. 363, in supreme court, and 8 Wend. 204, in court of errors.

An examination of those authorities, however, will show that none of them hold that the agent of a corporation is not liable to indictment for doing an act which the legislature has by statute prohibited the corporation from doing, and which statute has been violated by such agent personally, acting for the corporation, where a violation of the act by the corporation has been declared to be a misdemeanor.

In the case of State v. Gilmore, supra, an indictment was found against five parties, who, were stockholders, directors, and the principal officers of the Concord & Claremont Bail way Company. The act under which the indictment was found was to the effect that, “if the life of any person not in the employment of the corporation shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, such proprietor or proprietors shall be liable to a fine not exceeding $5,000, to be recovered by indictment. ” The proof showed that it had been voted to require the railroad to construct bridges or erect gates at a certain crossing where the accident happened. Notice of the order had been duly served, and proceedings were pending by the railroad company to avoid its effect at the time of the accident; the order had not been complied with, and the accident resulted from noncompliance; and it was finally decided that an indictment could not be maintained against a stockholder, director, officer, or any person, but only against the corporation. It will be observed, in the first place, that no crime is attached to the violation of the statute. All that the offender was subjected to was a fine, to be collected by means of an indictment. And, secondly, the case was of a class to which those hereinafter cited belong, namely, where the offense of the corporation consisted in not doing something which the proprietor or proprietors of the road were required to do.

Queen v. Pocock is of a similar character. In that case it was sought to hold the trustees of a road-district, who bad power to contract for repairing the roads, chargeable with manslaughter because of a person using one of such roads being accidentally killed in consequence of the road being out of repair, through neglect of the trustees to contract for repairing. The court said: “I am clearly of opinion that the inquisition is bad, and must be quashed. No doubt the neglect of a personal duty, where death ensues as the consequence of such neglect, renders the party guilty of it liable to an indictment for manslaughter, and the cases which have been cited in the course of the argument, and which establish that doctrine, are good law. But how can the principle, apply to the present case? It cannot be said that the trustees are guilty of a felony in neglecting to contract. Not only must the neglect, to make the party guilty of it liable to the charge of felony, be personal, but the death must be the immediate result of that personal neglect. According to the argument here, it might be said that where the inhabitants generally are bound to repair, and a death is caused, as in the present case, all the inhabitants are indictable for manslaughter.” In this case, also, it appears that the offense arose from neglect, and neglect only, precisely the same as in the New Hampshire case cited.

The case of Com. v. Demuth, supra, was an indictment against the president and 12 other defendants, being the directors and managers of the York & Gettysburg Turnpike Boad. The indictment contained five counts, the first four of which charged the defendants as president and managers of the York & Gettysburg Turnpike Boad. The act complained of was the maintenance of a gate across the turnpike road, thereby preventing its use, and the charge was that it was done unlawfully, injuriously, and maliciously. It appears that, upon the trial, the first four counts were abandoned, and the commonwealth relied upon the fifth count only, which charged the defendants with locking and fastening a certain toll-gate erected and placed across the turnpike road aforesaid, and keeping the gate locked and fastened. It appeared that this company had authority to erect this toll-gate, but that subsequent to its erection an act of assembly was passed by which there was a prohibition to erect or set up in future any toll-gate on the York & Gettysburg turnpike road within half a mile of the borough of York, and the president, manager, and company of said turnpike road (that being their corporate name) were directed to move the gate then standing at Bottstown (the gate in question) within six months after the passage of the act, to a distance of not less than half a mile from the borough of York. And the court, in disposing of the case, say: “It is plain enough that it was upon this act of assembly requiring the removal of the toll-gate that the last count of the indictment was intended to be framed, although there was no mention made of the act, or that the offense is in violation of it. But I do not perceive that the defendants individually were guilty of any offense. They had a right, as president and managers of the company, to erect the gate at Bottstown, and the company in their corporate capacity, and not the defendant individually, were ordered to remove the gate by the act of the 21st of March.” This case again was an indictment found upon a neglect of the corporation to comply with the requirements of a legislative enactment.

In the ease of State v. Barksdale, supra, the mayor of the town of Clarksville was found guilty on indictment against the corporation because-there was a public street in a ruinous condition and out of repair. And the court say: “Thomas W. Barksdale, mayor of the town of Clarksville, is individually found guilty upon a charge that a street in a town was permitted, to remain out of repair. He is not responsible individually therefor. The corporation is bound to keep the streets in repair,, and for neglect in doing so may be indicted and fined, but no member of the corporation is individually responsible for such neglect.” In this case it will be seen that the party convicted was not indicted individually, but simply in his corporate capacity, and, besides, it was simply because of the neglect of his corporation.

In the case of Kane v. People, supra, the defendants, being the president and two of the directors of the Mohawk Turnpike Company, were individually indicted for manslaughter. The fact charged, in which the offense consisted, was that the road belonging to the company, of which they were the president and two of the directors, was and had been out of repair for a length of time. The defendant Kane was convicted and the others acquitted. By the fifth section of the act incorporating the Mohawk Turnpike & Bridge Company it is made the duty of the president and directors of the company to keep the road in good repair. The seventh section reads as follows: “And every neglect to keep and preserve the road in such repair shall be taken, adjudged, and deemed a misdemeanor in the president and individual directors for the time being of said company.” Savage, C. J., says: “Several grounds have been urged as error and relied on to reverse this judgment, neither of which can be sustained. It is said that the act under which the conviction was had does not make the officers personally liable. The language of the act is that every neglect to keep and preserve the road in good repair shall be deemed a misdemeanor in the president and individual director, for the time being, of the company.' If the individual officers are deemed guilty of the offense, they must be individually punishable, which must be personal. Ho statute was necessary to make the road itself indictable as a nuisance. Upon such an indictment, however, the officers would not be liable to punishment individually. "Where the legislature makes them thus liable, they can mean nothing else but that they are to be personally liable. ” And further on it is said: “And as the liability is individual, I can see no reason why the prosecution may not be against each separately.” In the court of errors it was said: “In the case before us the statute was declared that a neglect of duty by those who were chargeable with the repairs for the time being should be a misdemeanor in them individually. They are therefore individually liable to be indicted and punished for their neglect.” And Senator Seward says: “The true as well as obvious construction of the act I think is this: that, in order to secure the performance of the duty enjoined upon the corporation, the persons who may hold the offices of president and directors are made individually liable for the neglect of the corporation. The use of the words ‘ individual director ’ can have no other sensible meaning.” This case is precisely the same as those which have been previously cited, because it was an indictment for neglect. A brief consideration of the provisions of the act in question in this case will show that the cases just cited have no application to the question before the court. It is provided by that act that it shall not be lawful for any steam railroad doing business in this state to heat its passenger-cars on other than mixed trains by any stove or furnace kept inside the car or suspended therefrom. It is not provided that the corporation shall remove the stoves from the cars. It is not provided that it shall be a misdemeanor if they keep the stoves in the cars. It is not provided that it shall be a misdemeanor, under all circumstances, for them to use such stoves for the purpose of heating the cars. It is only provided that it shall be a misdemeanor to heat their passenger-cars on other than mixed trains by such stoves, when such cars are in motion. There is no requirement that the corporation shall do anything. Should the corporation fail to remove the stoves,—fail to heat the cars,—it does not seem that there would be any violation, even by the corporation, of any of the provisions of this act. It is only when the affirmative act of heating the cars when in motion by the stoves is done, that the crime is committed. And the provision making it a crime to do this thing is as general as language can make it. It is “the violation of any of the provisions of this act shall be deemed a misdemeanor.” The defendants are by the indictment charged with actually doing the thing in violation of the statute. Hence we see the marked distinction between the cases cited and the one at bar; the cases cited being cases of mere neglect, and the case at bar being directed against an affirmative criminal act. And furthermore, in considering those counts of the indictment which charge the defendants with aiding and abetting the commission of the offense, it will be seen at a glance that the cases cited have no bearing, because it is difficult to see how a party can aid and abet another in simply a failure to act.

Archbold, in his treatise on Criminal Practice and Pleading, (volume 1, pp. 8, 9,) recognizes the distinction between indictments of corporations for nonfeasance and misfeasance, which seems to have existed for some time, they being indictable for non-feasance long before they were made subject to indictment for misfeasance. It would seem that as soon as corporations could appear in court by attorney they were held liable to indictment for breach of duty, as heretofore shown; but in cases of wrongful acts it was not until a considerable time after that corporations were made subject to indictment, probably because, as the members of the corporation actively participating in the doing of the wrongful acts could be punished, the ends of justice were subserved.

The claim is made that the defendants cannot be held as chargeable with a misdemeanor created by the car-heating act, upon the ground that they aided or abetted, counseled, induced, caused, or procured the commission thereof, under this indictment, for two reasons: First, that it was the plain intention of the legislature to limit the guilt for the violation of the act to those against whom the prohibition was expressly aimed, viz., the corporation or person operating the road; and, secondly, because, if a person is outside of the class against whom the prohibition of the statute is directed, and thus it is legally impossible for him to directly violate such prohibition, he cannot be indicted as principal for the crime created by such statute; and as by the indictment under consideration the defendants have been indicted in all the counts for the same misdemeanor, even if they could be charged as aiders and abettors upon a proper indictment, it could only be with the different and substantive crime of aiding and abetting, and they cannot be charged directly with the misdemeanor created by the car-heating act, because of aiding and abetting. In reference to the first ground above stated, if the construction of the act bore out the claim made by the defendants, such position would be well taken; because it is undoubtedly true that where it is the intention of the legislature, to be gathered from the act, that in creating a new offense it intended to limit the guilt to those against - whom the prohibition was expressly aimed, none others are liable. But the act exhibits no such intention. As already stated, the act makes it unlawful for any steam railroad to heat its passenger-cars, etc. It prescribes a money penalty against any person or corporation who violates the act, limiting the money penalty to any person or corporation operating the railroad. But when it comes to declare the violation of the provisions of the act to be a misdemeanor, there is no limitation whatever. The language is general, and applies to every corporation or person coming within the scope of the act and the provisions of the penal law. Therefore it is clear that there was no intention to limit the criminal section of the act further than statutory construction requires that it should be limited.

The case of Com. v. Willard, 22 Pick. 476, is not only not in hostility to this view, but, in view of the peculiar condition of our statutes, seems to support the same. In that case the charge was the sale of spirituous liquors in violation of the statute making such sale a misdemeanor, and the purchaser refused to testify, on the ground that his having induced another to commit a misdemeanor was an offense. which exposed him to punishment; and the court held that, as the statute imposes a penalty on every person who should sell, and as every sale implied a purchaser, and this fact must have been known and understood by the legislature, if it were intended that the purchaser should be subject to any penalty, it is to bepresumed it would have been declared in the statute, either by imposing a penalty upon the buyer in terms, or by extending the penal consequences of the prohibited act to all persons aiding, counseling, or encouraging the principal offender; and there being no such provision in the statute, there is a strong implication that none such was intended by the legislature. In the case at bar there is such a provision in the statute, being included therein by force of section 682 of the Code, and, there being no intention expressed by the statute to take it out of the general provisions of law, this section of the Code must necessarily apply.

In support of the second ground, our attention is called to the case of Shannon v. People, 5 Mich. 71, where an indictment was found under a statute which made it a crime for a father, mother, or person to whom a child had been confided, to expose it with the intention of abandoning it. The defendant, having aided and abetted in such crime, but not-being father, mother, or a person to whom the child had been confided, was indicted for the prin-' cipal crime of abandonment; and the court there held that, as the commission of the principal offense by any one not sustaining any of the relations prescribed in the statute is legally impossible, the defendant must be guilty, if at all, as an aider and abettor, and in such case his guilt will consist solely in the aiding and abetting; which in a case of this kind, since accessories are abolished, must be a substantive offense or no offense at all; and as the offense in such a case consists solely in the aiding and abetting, this circumstance must be alleged in the indictment or the offense does not appear. He must be indicted under the statute which he had violated, and not under that which he did not violate; and he cannot be indicted as a principal where he only becomes guilty by the aiding and abetting; but, if indictable at all, he must be indicted specifically for the aiding and abetting as a substantive offense; and reference is made to the case of Rex v. Douglas, 7 Car. & P. 644, and Reg. v. Bird, 2 Car. & K. 817. These cases were cases of concealment of birth under a special statute, where aiding and abetting by a distinct section of the statute is declared to be a misdemeanor, and do not seem to be any authority for the general provision.

Upon a consideration of the counts of the indictment in the case at bar, it will be seen that even if the case in question is to be considered as an authoritative exposition of the law, which it is not, being in direct conflict with the case of People v. Erwin, some of the counts conform to the requirements prescribed in that case; because the defendants are indicted for aiding and abetting in the commission of the offense, thus complying with the very requirements set forth in the case cited.

But, under these circumstances, it is claimed that the indictment is demurrable, because more than one crime is charged in the same count, (sections 278,279, of the Code of Criminal Procedure,) the one crime being the doing of the act, and another and distinct crime being that of aiding and abetting in the doing of the act. Prior to the Penal Code the rule was that, in eases of misdemeanor punishable by fine and imprisonment, the prosecution might join several distinct offenses, which related to the same transaction, in the same indictment, and tried at the same time, (1 Chit. Crim. Law, 254;) and section 31 of the Penal Code was but a recognition of this rule, providing that accessories, if the crime be a misdemeanor, may be indicted and punished as principals. Therefore but one crime is committed, whether the evidence tends to show the crime to have been directly committed by the defendant, or that he aided and abetted in the doing of the crime, bringing the case within the provisions of section 279, which provides that the crime charged may be charged to have been committed in a different manner or by different means. It is the same misdemeanor, whether committed by the principal or accessory, as both are principals; guilt, however, being dependent upon proof of a different state of facts. This is evident upon a consideration of what section 682 has read into the statute in question. This section provides that when an act or omission is declared by statute to be a misdemeanor, and no punishment for aiding or abetting in the doing thereof is expressly prescribed, every person who aids or abets another in such act or omission is also guilty of a misdemeanor, not a different misdemeanor necessarily. And the fifth section of the act in question, in view of this provision of the Code, is to be construed as though it read, “the violation of any of the provisions of this act, or the aiding and abetting in such violation, shall be deemed a misdemeanor.” But, even if this were not true, under section 279 of the Code it is provided that where the acts complained of may constitute different crimes, such crime may be charged in separate counts; and the mere use in the in dietment of the words “same misdemeanor” does not take the case out of the provisions referred to, because it is evident that it was the intention of the pleader, in using the words “same misdemeanor, ” to refer to the fact that the offense arose from the same heating of the cars by the stoves, and nothing more. It seems to me it would be a forced construction of the indictment to hold, if without the presence of the word “same” different offenses would be charged in the indictment, that the language is to be so construed. The result, therefore, seems to be that where a statute prohibits the doing of an act by a class of persons, and makes any violation of that act a misdemeanor, all active participants in such violation are equally guilty, be they directors or other agents or servants of the corporation; the directors not because they are directors, but personally; no individual, however, being liable who does not personally participate in the doing of the act, or in the aiding and abetting of the doing of the act; but that mere neglect to act does not constitute a crime, except against the class upon whom the duty is imposed.

This is in harmony with the principles laid down in Re Montrotier Asphalte Co., (Perry's Case,) 34 Law T. (U. S.) 716, where it was held that a director was liable for all that he did as director of a corporation, but not for wrongs done at a board meeting, he not being present. So in the cases of Arthur v. Griswold, 55 N. Y. 406, and Wakeman v. Dalley, 51 N. Y. 27, in which it was held that the mere fact of being a director or stockholder of a corporation did not make him liable for frauds and misrepresentations of the active managers of the corporation, but that some knowledge of and participation in the act claimed to be fraudulent must be brought home to the person charged. The case of Crowley v. People, 83 N. Y. 464, is entirely in accord with this view. In that case the defendant was not permitted to escape from his own direct malfeasance and violation of the statute by the argument that he had dothed himself with the protection of a corporate capacity. It is true that in the discussion of that case the learned judge who wrote the opinion devoted a considerable part thereof to showing that because of the peculiar language of the act the defendant, the secretary and manager of the institution, was personally liable to indictment. And it is said that it had been for years the law of this state that an officer of a corporation might be indicted for the neglect of a duty resting upon it, citing Kane v. People, supra, as an authority; which, however, did not sustain the proposition, as in the act then under consideration the president and directors were expressly made individually responsible by statute, as has been already seen. The learned court, however, held that as the defendant did jiave the actual immediate physical care and custody of the child, he came within the provisions of the act, and could not shelter himself, as already stated, under the fact that he was the officer of a corporation. Therefore, in the case at bar, the defendants cannot be held liable, as already stated, merely because they are directors; but they must be shown to have personally participated in the commission of the offense for which the indictment has been found; and if the evidence upon the trial does not reach this dignity, then it is clear that no offense is made out. Such is the principle of all the cases cited, particularly the ease of People v. Erwin, supra, in which the fact of personal participation is made the turning point of the case. And it must be so, because a person cannot be vicariously guilty of a crime. This fact, however, cannot sustain the demurrer to this indictment, because the indictment charges these defendants with actively participating in the commission of the offense, either directly or as aiders and abettors.

It is, however, suggested that a foreign corporation cannot be indicted, and therefore, if there is no principal, there can be no accessories. But, even if this were so, where, by the law, one who aids and abets another in the commission of a misdemeanor is also guilty of a misdemeanor, and is a principal, the inability to punish some one else can in no way affect the ability to punish the aider and abettor. There is no such thing as secondary liability in misdemeanors. All—principal actors and aiders and abettors—are guilty of one and the same crime, and all are principals, and consequently may be separately punished. The claim that the indictment does not charge any fact or facts constituting a crime, but simply the crime, is not well founded. The indictment, in some counts, charges that the defendants did the act which constituted the crime, and in others that they counseled, aided, and abetted in the doing of the thing. It is not the office of an L dictment to set out the evidence. If conclusions of fact are stated, which facts, if true, constitute a crime, that is all that is necessary. The evidence to establish these conclusions forms no part of the indictment. The office of an indictment is to inform a defendant of the reasons why he is charged with crime, not to inform the defendant what the evidence is which establishes the charge. Upon the whole, therefore, I am of the opinion that the demurrer should be overruled, with liberty to the defendants to withdraw the same, and plead anew to the indictment.