People v. Potter

3 Ill. Cir. Ct. 393

• Court: Illinois Circuit Court
• Decided: February 28, 1908
• Docket: No. 3760; No. 3761; No. 3762; No. 3763; No. 3764; No. 3765
• Status: Published

Opinion

Thompson, J.:—

I desire now to express my appreciation to the state’s attorney and each of the attorneys for the defendants, for the very able and exhaustive arguments made in these eases. I realize the seriousness of this matter, both to the defendants-, who stand charged with a felony, and to the victims of that unfortunate occurrence, and I am not unmindful of the very bitter feeling engendered throughout this county by it.

The Mattoon City Railway, an Illinois corporation, owns and operates a single track interurban electric railroad, between the cities of Mattoon and Charleston, Illinois, a distance of about eleven miles. On August 30, 1907, an express car going west on a sharp curve, which rounded a high point of land, collided with a passenger car going east, and eighteen people were killed and about as many more injured.

As a matter of common knowledge we all know that accidents of that kind do not occur without the fault of somebody. Some one, or more persons, was to blame for that unfortunate occurrence. One can hardly realize such an occurrence without involuntarily saying, “someone has blundered, someone was negligent, someone was to blame and should be punished.”

As said by Blaekstone, the principal object of criminal prosecution is not so much to punish the defendant, as to set an example to others, to not violate the law. The state does not ask for vengeance alone. It cannot benefit the state to hang a man for murder, except in so far as it sets an example to others not to kill.

The motion to quash of course challenges the legal sufficiency of the indictments, and each count, and under that motion, numerous reasons are urged against their sufficiency, some of which I shall not take the time to even mention, much less to discuss.

Indictment No. 3762 is against the defendants for “manslaughter,” and contains twenty-two counts, some of which include only the directors, others the directors and officers, and still others the directors, officers and superintendent of said railway company.

Indictment No. 3763 is against the defendants, for “criminal carelessness,” and contains ten counts, some of which include only the directors, others the directors and general manager, and still others the general manager and superintendent, and is drawn under section 49, of the criminal code of Illinois, which is as follows:

“Whoever, having personal management or control of or over any steamboat or other public conveyance used for the common carriage of persons, is guilty of gross carelessness or neglect in, or in relation to, the conduct, management or control of such steamboat, or other public conveyance, while being so used, for the common carriage of persons, whereby the safety of any person shall be endangered, shall be imprisoned in the penetentiary not exceeding three years, or fined not exceeding $5,000.00.” (Hurd’s Eev. Stat., 1906, p. 681).

I will discuss the second indictment first, as much of what I shall say will also apply to the first.

Let us for a moment discuss that statute. So far as I can learn it was passed in 1874, or at least was in the revision of that date, and has been in force ever since and it seems a little significant that after the exhaustive research of counsel, no prosecution under it can be found in this state. Being a penal statute, it should be, and under the well known rules of construction, is to be strictly construed. By express terms it is limited to “whoever having personal management and control.” Of what? A business? A company? A corporation? A railroad? No! “A steamboat or other conveyance-used for the common carriage of persons.” When? “While being so used.” How? “For the common carriage of persons, whereby the safety of any person shall be endangered, shall be imprisoned,” etc. I do not think this statute was ever intended to apply to persons having the management or control of the business, such as directors or officers of a corporation.1

It is also urged that the indictments are bad, because of the misjoinder of the defendants. An indictment is a charge, against one or more defendants, and additional counts may be added, charging the commission of the offense in different ways, in order that the proof, if it should not be as the pleader anticipated in the first count, would prove the allegations of some one of the others. If there is absolute certainty as to the proof, there is no necessity for more than one count in an indictment for an offense. I do not understand, and I have not been referred to any authority which holds than an indictment can charge part of the defendants in some of its counts and part of them in others, as in both of these indictments, charging the directors alone in some counts, the directors and general manager in others and the general manager and superintendent in still others.2

But it is urged by the prosecutor, that he can nolle the counts which charge separate defendants, thereby leaving only those counts which charge the same defendants. An indictment is a charge against a certain person or persons, with the commission of an offense, but the separate counts must charge the same defendants with the same offense, but not necessarily of having committed it in the same way. For example, A is found dead in a pool of water. B and -C are indicted. One count charges them with having murdered him by choking him; another count by striking him on the head; another by drowning him. The defendants are the same, the offense is the same but the manner of committing it is different. I think both indictments are bad for that reason, nor do I believe it will make such an indictment good to nolle the bad counts. I do not think you can make a good indictment out of a bad one by nollying the bad counts.

It is also urged that these indictments are bad because there is no joint legal duty and responsibility resting upon the defendants. In other words, the duties and responsibilities resting upon the directors were not the same as upon the general manager or the superintendent. Consequently the violation of the duty owing by some of the defendants would not apply to others. As was said in the Ford Theater Case (Ainsworth v. United States, 1 App. Cas. [D. C.] 518), the duties resting upon the architect who drew the plans and specifications for the improvement, were different from the superintendent who had general supervision of the work and also of the foreman directly in charge of the men who excavated the earth beneath the supports, and thereby caused the building to collapse.3

There is no question in my mind as to the criminal liability of directors of a corporation in certain cases of neglect •of duty. There are certain duties and responsibilities resting upon the board of directors, which they are no more at liberty to violate or disregard than those 'resting upon individuals, and in many ways may be likened to the owner in case the business was owned and conducted by an individual instead of a corporation. To say that the owner of this railroad would be jointly liable, criminally with the superintendent or general manager, who negligently or wilfully gave orders which resulted in the wreck, or with the motorman who negligently or wilfully ran his car into another, either in obedience to or in direct violation of those orders, would not, upon the mere statement of the proposition, meet the approval of any fairminded person. To include the directors with the other defendants, in these indictments, I think makes them bad.4

It is urged that each and every count in both indictments is bad for duplicity. An indictment should be certain and speciñe as to the defendants, the offense, and the manner of its commission, so that the plea of ‘‘not guilty” will raise a single issue upon each count. If more than one issue is raised upon any count by that plea, the count is duplicitous, and would be bad for that reason in a common law declaration.

Take for example the first count of No. 3762. It alleges that on August 30, 1907, Potter, Peabody, Underwood, Sampsell and Grosseup “were and then and there had assumed the offices of and duties of directors of” said railway company, a corporation, etc., and the said Potter “was and then and there had assumed the office and duties of president of said Mattoon City Railway Company, and Fred More was, and then and there had assumed the office and duties .of superintendent of said railway company,” and “that on the day aforesaid the said Mattoon City Railway Company owned and was then and there operating a single track railroad in and between the cities of Mattoon and Charleston, in said county and state,” etc.; that on that day said directors and More composing said board and superintendent as aforesaid “had then and there taken on themselves the management, control, and supervision of said railroad and the operation and conduct of the said passenger and freight motor cars of said company on said railroad, and it was then and there the duty of the said Potter' Peabody, Underwood, Sampsell, Grosscup and More, as the board of directors and superintendent as aforesaid, to then and there provide and establish with due care and circumspection for the guidance of the employees of said company and for the protection of the lives and safety of the passengers then and there carried upon the aforesaid passenger cars, proper and sufficient rules and regulations relating to the safe and efficient operation of the •said passenger and freight motor cars upon said single track railroad so that the lives and safety of the passengers carried” would be secured, etc., “and to then and there take care and see to it that such rules and regulations as aforesaid were then and there provided, established and enforced in the operation and running of the aforesaid cars on said railroad, yet, not regarding their duty in that behalf and without due care and circumspection for the lives and safety of the passengers then and there being carried on the aforesaid passenger motor cars the said” directors and More, as the board of directors and superintendent as aforesaid, “did then and there feloniously and wilfully fail, neglect and omit to provide and establish, and to take care and see to it that said company and railroad were then and there provided with proper, sufficient, and safe rules and regulations for the guidance of th¿ employees of said company in and about the operation and running of the passenger and freight motor cars of said company on said railroad as aforesaid so that the safety and lives of the passengers then and there being carried on the said passenger motor cars would be secured, and did then and there feloniously, wilfully and negligently and without due caution and circumspection, provide and establish and enforce unsafe, improper and insufficient rules and regulations for the guidance of the employees of said company and for the preservation of the lives and safety of the passengers then and there being carried upon said passenger motor cars, by reason whereof, and the aforesaid felonious and wilful neglect and omission of the said ‘directors and More,’ a passenger motor car of said company and a freight motor car of said company, being then and there propelled by electricity in opposite directions and toward each other and at a high rate of speed along and upon said single track railroad on the day aforesaid, and in the county and state aforesaid, came into violent contact and collision and said ears were then and there mashed, crushed and driven together and upon and into each other, and by means thereof mortal wounds were then and there inflicted upon and in the head and body of William Nelson,” a passenger, etc.

A count should allege the existence of facts upon which the law creates the duty, and it is not sufficient to allege that it then and there became and was the duty of defendants to provide and establish with due care and circumspection for the guidance of the employees and safety of the passengers, proper and sufficient rules, and regulations relating to the safe and efficient operation of said freight and passenger cars, and to see that they were enforced in the running of said cars.

Then again, line 69, page 21, “did then and there feloniously, wilfully and negligently and without due caution and circumspection, provide and establish aud enforce unsafe, improper and insufficient rules and regulations,” etc. Line 59 alleges the defendants did ‘‘fail, neglect and omit to provide and establish,” proper, sufficient, and safe rules, etc. In line 59, committed manslaughter by negligently omitting to provide and enforce safe rules, and in line 69, committed manslaughter by negligently providing and enforcing unsafe .rules.

Again no rule or regulation is alleged that the court may .judge as to whether or not it is safe, reasonable, proper or sufficient. What rules were violated? How were the defendants negligent?

Again, the allegations should show a direct casual connection between the act and the death. To allege that A shot B ' with a gun and that B afterwards died is not sufficient. So far as the allegations of this count are concerned, one or both motormen may have been, at the time of the accident, wilfully violating some positive rule of the railroad, which resulted in the collision.

Neither do I see how the directors can be held liable at common-law for manslaughter. They cannot be held liable civilly,5 and no authority has been cited, which holds them criminally liable in such a case.6 That the corporation is liable in damages, no one will dispute. That the person or persons directly responsible for the death is criminally liable I do not doubt. Suppose the board of directors, or the superintendent provided proper rules,, and the motorman either negligently or wilfully, in violation of the rule, causes a death, upon what legal principle would the directors or superintendent be criminally liable?

Suppose I tell my man to take the horse to the shop to be shod, and on the way, he negligently or wilfully runs, over a child in the street, would anyone say I could be convicted of manslaughter and confined in the penitentiary?

The mere statement of the proposition is abhorrent to any fair-minded person. If that was the law no one would dare engage in any business beyond that of driving his own team, for fear of the criminal consequences.

As to the objection to the legality of the indictments as found and returned by the grand jury according to the affidavits filed. The grand jury met on October 14, 1907, and returned indictments against all these defendants in these cases, and finished the work for that term on October 30,

1907, but were told by the presiding judge to not adjourn, as they might be needed again and if so they would be notified. The grand jury did not adjourn, but as the affidavits say, ‘¹ drew their pay and went home. ’ ’ All the indictments against these defendants, returned at that time, have been nolled. On January 6, 1908, the members of the grand jury, in response to a postal card sent them by the sheriff upon notice from the clerk, that the judge wanted them to return, met at 1:30 p. m. and returned all these and other indictments into court, and adjourned at 2 -.45 p. m.

Section 19, chapter 78, Rev. Stat. of 111. provides that “The judge of any court of record of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of opinion that public justice requires it. The order for such venire shall be entered on the records of the court by the clerk thereof; and such clerk shall forthwith issue such venire, under his hand and the seal of the court, and deliver the same to the sheriff, who shall execute the same by summoning, in the same manner now provided or that may hereafter be provided by law for summoning jurors, twenty-three persons, qualified by law, to constitute a grand jury.”

, Objection is made that several of these grand jurors were summoned by the sheriff enclosing a copy of the venire and a return card to himself, in a letter to the juror upon which the juror acknowledged service and promised to be present. This practice has obtained in a number of counties in this state. No authority has been cited upon that objection, and since every juror reported and was impaneled, I will not hold the grand jury was illegal for that reason. I think the service was not as required, and had some one so notified failed to appear, and his place filled, it might make it an illegal grand jury. I would not want to issue an attachment upon that notice.

“If a grand jury shall be required by law or by the order of the judge for any term of court, it shall be the duty of the county board # ® to select twenty-three persons,” etc.,

and to cause their clerk within five days thereafter to certify them to the clerk of the court, etc. (sec. 9, chap. 78 Rev. Stat. of Ill.)

It is objected that because the clerk of the county did not so certify these persons to the circuit clerk for seven days after they were selected, the grand jury is illegal. I think that provision of the statute is directory only, and failure of the clerk to so certify them, should not be held to avoid the grand jury.

It is also urged that these indictments are void, because they were not read to the grand jury, and it heard no evidence at that meeting, and all the knowledge it had of their contents was the statement of the prosecutor, to the effect that the others returned might prove insufficient or defective, and he desired these returned. I do not think it can be said that no evidence was heard in support of these indictments. It is conceded that the grand jury heard evidence in these cases in October, and the mere fact that they were not prepared and returned till January 6, would not avoid them. I know of no law or reason why the grand jury should return indictments within any specified time.7

It is also .urged that because the witness Jenkins was sworn by another member of the grand jury, in the absence of the foreman, and testified in these eases, that these indictments .are illegal.

Section 17 provides: “After the grand jury is impaneled, it shall be the duty of the court to appoint a foreman, who shall have power to swear or affirm witnesses to testify before them,” etc. While the statute does not exclusively authorize the foreman to swear witnesses, I am inclined to think that was intended by the legislature. Certainly he is expressly given that authority and had the legislature intended, it could as easily have said “all members” as “the foreman.” But the affidavits show that other witnesses were sworn by the foreman, and testified upon the same matters as Jenkins, and if his testimony was improperly received, there still remains sufficient evidence.

It is also urged that the state’s attorney should not have been present when these indictments were voted. I know of no statute which authorized the state’s attorney to be present in the grand jury room, during its deliberations, but so far .as I know, it is the general custom throughout the counties of this state. He generally conducts the examination of witnesses and prepares all indictments. It would be practically impossible to leave the preparation of indictments to the members of the grand jury and expect good indictments. It is pretty difficult for an experienced lawyer to get them sufficient in many eases. I think the state’s attorney may properly be with the grand jury and advise them and counsel with them, as to their duties and work, so long as he does not prevail upon it to return an indictment which it would not otherwise have done, for it would then be his, and not the grand jury’s.8

It is also urged that when the grand jury returned their indictments October 30, and as the affidavit states “drew their pay and went home,” that terminated their authority and duty as a grand jury. Had the grand jury adjourned for a week, a month, or until January 6, 1908, I would have no doubt of their authority to act at such adjourned meeting. But it seems to me that under the facts in this case they were through, providing the judge should not order them reconvened, In other words, to all intent and purposes they were discharged, if he did not send for them, but if he should send for them they were not discharged.

The affidavits state that the judge made no order on his. docket as to the recalling of the grand "jury, but that the clerk without legal authority, wrote it up as an order of court. I cannot see how that can tend to support the indictments for if the judge made no order, then the meeting on January 6 was without the order of the judge, and certainly it will not-be claimed that the clerk or sheriff had power to recall a grand jury. But I think it was the duty of the clerk to correctly record the court proceeding of the day, and if the judge so directed the grand jury the court proceeding should so show.. Still, I am aware of no law which places the grand jury under the direction of the judge, clerk or sheriff, during the entire term of court, to be called together at any time to make presentments.

Section 19 above quoted contemplates just such a situation and provides that a special venire may be ordered by the-judge at any time when he shall be of opinion that public-justice requires it, and provides- how it shall be done. This-section of the statute is absolutely of no force, if the methods, pursued -in this case are to be held legal. If that is the law,, a grand jury would be a sort of censor over the people of' the county from one term of court till the next, come and go-as they pleased, never adjourn, meet at any time of their own notion, or at the request of the judge, clerk or sheriff,, and return a few indictments and separate at will.

I think that when the grand jury quit on October 30, 1907, its authority ended, and all the indictments returned on January 6, 1908, were without authority and void. The motions will be sustained, and each of said indictments ordered, quashed and the defendants discharged.

Note 1. — This holding is sustained by many authorities construing analogous statutory provisions. Thus in Caron v. B. & A. R. R. Co. (Mass. 1895), 42 N. E. 112, the court said:

“We think, therefore, that by the words ‘any person .... who has the charge or control’ is meant a person who, for the time being at least, has immediate authority to direct the movements and management of the train as a whole, and of the men engaged upon it.”

And in Thyng v. Fitchburg R. R. (Mass. 1892), 30 N. E. 169, it was said that the statute “seems to contemplate the danger from a locomotive engine or train as a moving body, and to provide against the negligence of those who, either wholly or in part, control its movements. The charge or control is of that whose characteristic is rapid and forceful motion.”

See also to the same effect Fairman v. B. & A. R. R. Co. (Mass. 1897), 47 N. E. 613; L. & N. R. R. Co. v. Richardson (Ala. 1893), 14 So. 209; Davis v. N. Y., etc., R. R. Co. (Mass. 1893), 34 N. E. 1070; Steffe v. Old Colony R. R. Co. (Mass. 1892), 30 N. E. 1137; Cox v. Railway Co., 9 Q. B. Div. 106, and on the meaning of “personal management” or “personal control” in general, see Mulford v. Gibbs, 41 N. Y. S. 273; Prince v. Brett, 47 N. Y. S. 402; Coburn v. Kerswell, 35 Me. 126; Youst v. Willis (Cal.), 49 Pac. 56, and vol. 5 Century Dict, and Cyc. title “personal”; Standard Dict, title “personal.” — Ed.

Note 2. — The following authorities support this holding:

State v. Daubert, 42 Mo. 242; McMullin v. Church, 82 Va. 501; Howard v. State, 40 So. 653 (Miss.); McElroy v. United States, 164 U. S. 76. — Ed.

Note 3. — The case of Ainsworth v. United States, 1 App. Cas. 518 the leading case" on the subject, is decisive of the point. The opinion contains a masterly and logical exposition of the doctrine of misjoinder. To the same effect, see 21 Cyc. Law and Proc. p. 839; People v. Davis, 1 Ill. C. C. 217, 241; Commonwealth v. Miller 2 Pars. Sel. E'q. Cas. 480; United States v. Davis, 33 Fed. 621; Wharton’s Crim. PI. and Pr. (9th ed.) sec. 303.

The rule in civil cases is the same. Thus, a master and servant cannot be jointly sued for the tortious act of the servant. See McNemar v. Colin, 115 Ill. App. 31; Berghoff Brewing Co. v. Prgbylski, 82 Ill. App. 361; Schmidt v. Balling, 91 Ill. App. 388. — Ed.

Note 4. — It is well settled that to render a director or an officer of a corporation criminally liable, for causing death he must personally participate in the acts causing the death.

A leading case is People v. Clark, 8 N. Y. Crim. Rep. 178, 14 N. Y. S. 642, where the authorities are reviewed. The defendants there were indicted as the president and directors of a railroad company for violation of a statute prohibiting the heating of cars by stoves. The court concluded:

“Where a statute prohibits the doing of an act by a class of persons * '• * 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. * * *" •

In State v. Young, 56 Atl. 471, 26 N. J. Law, 264, a verdict of acquittal was directed in a prosecution for manslaughter against the president, vice president, executive committee, general superintendent, etc., of a street railway company for causing the death of a passenger at ,a grade crossing. Judge Gummere stated the rule thus:

“The question of criminal responsibility of the individual officers or agents of the company is a much narrower one than that of the civil responsibility of the corporation. It must appear that each one of these directors or officers, to be responsible criminally, has been guilty of gross negligence, either in the doing of, or in the omission to do, some specific act, which was rendered necessary in the performance of his duty to the children who rode on that car.” The rule is laid down in 21 Am. & Eng. Ency. of Law (2nd ed.) 896, thus:

"In order to hold an officer or agent criminally liable individually for an offense committed by the corporation, or by its officers or agents, it must be shown that he had some actual personal connection with the illegal act charged.”

In 3 Cook on Corporations, sec. 908, it is said:

“Directors are not criminally liable for accidents where they were not personally in charge of the running of the road.”

And see the charge to the jury of Judge Ke.logg of the New York supreme court (yet unreported), rendered December 18, 1907, in People v. Smith (an indictment against the vice president of the N. Y. Central & H. R. R. R. Co., on .account of the death of certain passengers in a railway wreck). For the decision on the motion to quash the indictment see People v. Smith, 105 N. Y. S. 1082, decided September 2, 1907. To the same effect see State v. Parsons, 12 Mo. App. 205; State v. Gilmore, 24 N. H. 461; State v. Patton, 26 N. C. 16; People v. White Lead Works, 82 Mich. 471; State v. Great Works Milling & Mfg. Co., 20 Me. 41; Commonwealth v. Demuth, 12 S. & R. 389; In re Greene, 52 Fed. 119; State v. Wabash R. R. Co., 115 Ind. 466; City of Wyandotte v. Corrigan, 35 Kan. 21, 10 Pac. 99; Ex parte Grand Trunk Railway Co., 18 Lower Canada Jurist, 141; State v. White (Mo.), 69 S. W. 684; People v. England, 27 Hun, 139; State v. Barksdale, Mayor, 5 Humph. 154; Kane v. People, 3 Wend. 363; 3 Thompson on Corporations, sec. 4114; Bishop’s New Criminal Law (8th ed.), vol. 1, sec. 424; vol. 2, secs. 1270, 1282.

It is equally well settled that to render a person liable on account of negligent omission whereby a death is caused, the omission must be due to gross and culpable negligence and must have resulted from the neglect of a plain duty imposed upon the defendant personally and the death must be the direct result of such negligence.

This rule is laid down and established by numerous authorities. See 21 Cyc. Law & Proc. pp. 765, 768, 769 (nn. 92, 93), 770; Clark’s Crim. Law, p. 174; Wharton on Homicide (3rd ed.), secs. 446, 447, 449, 451, 457, 466, 467, 468, 480; 21 Am. & Eng. Ency. of Law (2nd ed.), pp. 99, 194; Kerr on Homicide (ed. 1891), sec. 157; Regina v. Pocock (a leading case), 5 Cox C. C. 172, s. c. (somewhat differently reported), 79 Eng. C. L. 34; Rex v. Allen, 7 Car. & P. 153; Rex v. Green, 7 Car. & P. 156; Regina v. Haines, 2 Carr. & K. 368; United States v. Knowles, 4 Sawy. 517, Fed. Cas. 15,540; Thomas v. People, 2 Colo. App. 513, 31 Pac. 349; Hilton’s Case, 2 Lewin C. C. 214; Regina v. Bennett, 8 Cox C. C. 74; Anderson v. State (Tex.), 11 S. W. 33; People v. Eberly, 2 Colo. Law Rep. 78; Johnson v. State, 61 L. R. A. 277 n.; Ainsworth v. United States, 1 Appeal Cas. 518; Fenton’s Case, 1 Lewin C. C. 179; People v. Munn, 65 Cal. 211; 1 East’s Crown Law, p. 265; Wharton’s Criminal Law (9th ed.), sec. 1580.

That the negligence must be gross and culpable is established by the following additional authorities: Regina v. Elliott, 16 Cox C. C. 710; Regina v. Finney. 12 Cox C. C. 625; Regina v. Gregory, 2 Fost. & Finl. 153; Beek v. People, 125 Ill. 584; State v. O’Brien, 32 N. J. L. 169; Fitzgerald v. State, 112 Ala. 34, 20 So. 966; 8 Criminal Law Magazine, p. 124. — Ed.

Note 5. — Directors and officers of corporations are not civilly liable to third persons for negligence, unless they personally participate in the acts of negligence and even where directors or officers are guilty of negligence a distinction is to be noted between acts of nonfeasance and acts of misfeasance. While it may be the duty of a particular corporation, as for instance a common carrier, to use the utmost degree of care towards the public, the officers and directors of such corporation are merely its servants or agents and their duty is owing to the corporation' and not to third persons. Consequently they are not liable to third persons for acts of nonfeasance.

In Shearman & Redfield on Negligence (5th ed.) sec. 243 the rule is stated:

“The directors or other officers of a corporation cannot be held liable to a stranger for any omission on the part of the corporation to perform a duty to him, even though such omission is the direct result of the vote of such directors, who have exclusive control of the corporate business.” See also sec. 244.

The leading case is Lane v. Cotton, 12 Mod. 472, a decision by Holt, J., where the court said:

“His neglect is only chargeable on his master or principal for a servant or deputy, quatinus such, cannot be charged for neglect, but the principal only shall be charged for it, but for a misfeasance an action will lie against a servant or deputy, but not quatenus a deputy or servant, but as a wrongdoer.”

See also to the efféct that agents are not liable to third persons for acts of nonfeasance: Murray v. Usher, 117 N. Y. 542; Van Antwerp v. Linton, 35 N. Y. S. 318; Ballow v. Farnum, 9 Allen, 47; Lenny v. Manhattan Co., 5 Denio, 639, aff. 2 Denio, 115; Dean v. Brock (Ind.), 38 N. E. 829; Regina v. Smith, 11 Cox C. C. 210; Delaney v. Rocherau, 34 La. Ann. 1123; Lundy v. Delmas, 104 Cal. 655; Lavenport v. Newton (Vt.), 42 Atl. 1087; Fanning v. Osborne, 102 N. Y. 441; Feltus v. Swan, 62 Miss. 415; Labodie v. Hawley, 61 Tex. 177; Reid v. Humber, 49 Ga. 207; Steinhauser v. Spraul, 127 Mo. 541; Drake v. Hogan (Tenn.), 67 S. W. 470; Bassett v. Fish, 75 N. Y. 303; Wahrman v. Board of Education, 187 N. Y. 331, 80 N. E. 192; Wharton on Homicide. (3rd ed.) p. 682; Mechem on Agency (ed. 1889), secs. 539, 569, 570; 1 Ency. of Law (2nd ed.), p. 1131; Ewell’s Evans on Agency, p. 438.

But in Baird v. Shipman, 132 Ill. 16, it was held that where an agent of a nonresident owner of a house and lot, having the same charge of the property as the owner would have had were he present, leases the same, with knowledge or notice that one of the stable doors on. the premises is unsafe and in a dangerous condition, and an expressman, while engaged in delivering a load of kindling wood in the barn for one of the tenants, was killed by the falling of such door, that the agent was liable to the personal representative of the deceased in damages and could not excuse himself on the plea of the liability of his principal. This decision is against the great weight of authority in so far as it tends to hold that an agent is liable to third persons for mere acts of nonfeasance, but the case is usually classed as one in which the agent was guilty of misfeasance and not mere nonfeasance. This on the theory that as the agent had entered upon the execution of a particular work it was his duty to use reasonable care in the manner of executing it. See vol. 1, Ency. of Law (2nd ed.), p. 1132. But the decision is reconcilable with the general rule above stated for the reason that as the owner was outside the jurisdiction of the court the agent must be treated as the person in control. This distinction would not exist in the case of a corporation which can act only through its officers and agents, and consequently the corporation would be liable under the doctrine of respondeat superior. See also Mechem on Agency, sec. 572: Wharton on Negligence, sec. 535, and Cameron v. Kenyon-Connell Comm. Co. (Mont.), 56 Pac. 358, which lean to a contrary view. In the latter case the court said:

“Nonexecution which resulted in the positive act of a creation and maintenance of a continuing nuisance on account of which a third person was killed, amounts, unless explained, to misfeasance upon the part of all the directors of the company.”

The proposition that directors are only liable for negligence where they personally participate in the acts of negligence is sustained by the following authorities: Belo v. Fuller (Tex.), 19 S. W. 619; Folwell v. Miller (C. C. A.), 145 Fed. 495; Henry v. Brackenridge, 48 La. Ann. 950; Bianki v. Greater Am. Exp. Co. (Neb.), 92 N. W. 615; 10 Cyc. Law & Proced., p. 829; see also note to Nunnelly v. Southern Iron Co., 28 L. R. A. 421. Contra, Nunnelly v. Southern Iron Co. (Tenn.), 94 Tenn. 397, 28 L. R. A. 421; National Cash Register Co. v. Leland, 94 Fed. 502 (C. C. A.). Compare Peak v. Cooper, 112 Ill. 92. — Ed.

Note 6. — In Wharton on Homicide (3rd ed.), p. 683, sec. 447, the rule is stated:

“So far as concerns homicide, we may safely say that there is no criminal responsibility where the defendant would not have been civilly liable at the suit of the party injured, had he survived the injury.”

And in Regina v. Burchall, 4 Fost. & Finl. 1087, Judge Willes said that until he saw a decision to the contrary he should hold ¡that a man was not criminally responsible for negligence for which he would not be responsible in an action. — Ed.

Note 7. — In State v. Ivey, 100 N. C. 541, 5 S. E. 407, an indictment was returned by the grand jury and being insufficient was quashed. Thereupon the same grand jury returned a second indictment without re-examining the witnesses on hearing further evidence. The -court held the indictment insufficient for this reason.

It is believed that this decision cannot be sustained either on principle or authority and that the decision of Judge Thompson in the above case is correct.

In Bishop’s New Criminal Procedure, sec. 870, it is said:

“The grand jury at any time during the term of organization and service may find a second indictment as a substitute for the first without hearing the evidence anew.”

And in 10 Ency. PI. & Pr. 395 n., it is said:

“Where an indictment is defective or is recommended to the same grand jury, it may find another indictment without recalling the witnesses who had already been before it.”

The same principle is laid down in the following authorities: Whiting v. State, 48 Oh. St. 220; McIntyre v. Commonwealth (Ky.), 4 S. W. 1; State v. Clapper, 59 la. 279; Creek v. State, 24 Ind. 151; State v. Peterson, 61 Minn. 73, 63 N. W. 171; Commonwealth v. Woods, 10 Gray, 477; Commonwealth v. Clune, 162 Mass. 206; 17 Am. & Eng. Ency. of Law, 1285. In Spannenberger v. State, 53 Ala. 481, and State v. Crady, 12 Mo. App. 361, the rule was denied with respect to the finding of a former grand jury. — Ed.

Note 8. — See Gitchell v. People, 146 Ill. 175, 187, and Regent v. People, 96 Ill. App. 189, 196. — Ed.