Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-23


upon The track Of sny railroad in this
State any kind Of obstruction or looaens
or removes any of the rails or timbsr, ?
etc, ETC., $50 as TO endsnger the nafe
running Of the locomotive and cars OF
either or any of them, Ia guilty of fell
ony, and upon conviction of either Of
Tense shall be imprisoned in the peniten-
tiary not less than two nor more than fif-
teen years. 4, $50 ps0vides, that If any
person is killed by any Academic ccasi0ned
by either of the offenses enumerated in
the foregoing section, the offender is
guilty of murder in the second degree,
and shall be punished accordingly. O y
It will be observed that s4, 6Ss, the Of
Tense consists in wilfully and maliciously
putting distractions on the railroad
track, loosening or removing rails, TIM
bers, ETC., ETC., and by the next succeed
ing section it is provided that il any per-
son Is killed by any accident occasioned
by either of the offenses enumerated in
the foregoing section, the offender is
guilty of murder in the second degree and
shall be punished accordingly.
The act of 1929 was passed long before
the enactment of those sections of the
Code which constituted the putting OBJ
structions upon 6 RAILROAD an offense, and
when no special legislation either for the
purpose or protecting passengers or the
properly of the railroad company was
necessary.
Since numerous railroads have been
built in the Slate, the Legislature has,
from time to time passed special laws for
their protection, as well as to secure the
safety of the persons and property of cit
liens using them for purposes of trans
portation. For these particular purposes,
the SIS 4,638 30 40 of the Code were
enacted, and the offense of putting OBJ
structions upon railroad track, whereby
any person is killed, is made punishable
as murder in the second degree.
In view of this particular legislation
upon this subject, we feel constrained to
hold that, where, by statute, new Of
Tense is created, although the acts con-
stituting such new offence, might be pun
ishable under former general statute, yet
the punishment for the new offense must
be confined to that prescribed In the
statute creating it.
And the reason of this rule is that
where the attention of the Legislature
has been turned to the details of the sub
ject, and they have acted upon it, and
have prescribed a specific punishment,
for particular offense, the presumption
is that they intended to exclude other
modes of punishment, except those ex-
pressed. And SO strong is this presump-
ton that, even subsequent statute in
general terms, or treating the same subject
in general manner, and not expressly
contradicting the original act shall not
be considered as intended to affect the
more particular or positive previous
provisions, unless it is absolutely necessa-
ry to give the latter act such construc-
ton, in order that its words shall have
any meaning at all. Sedg. Stat. and Con.
Law, "a, So, 1923.
If it be said that under our construc-
ton of the statute, the wholesale muir
derer can only be punished, at most, as
for the crime of murder in the second de-
gree, it is answered that the courts cannot
encroach upon the functions of the legis-
islative department of the government,
and the remedy can only be applied by
such alteration of the law as the Legisla-
ture may deem it expedient to make. But
it is not necessary In this opinion to hold,
nor is it intended to be decided, that if the
specific intent to kill the party slain were
shown to exist that defendant might not,
by the placing of obstructiens upon rail-
road track to accomplish that object, be
convicted, upon a proper Indictment of
the highest grade of homicide under the
provisions of 4,598 of the Code.
The judgment of the Criminal Court
must be arrested, and the prisoner must
be remanded to the custody of the Sheriff
of Greene county, to be held to answer
any new Indictment that may be brought
against him. DEADRRIoK, Judge.
A true copy.
Test: J. F. DKADRRIcK, Clerk.