made better in the sunlight of charity. In the atmosphere of kindness the seeds of virtue burst into bud and flower. Cruelty, tyranny, brute force, do not and cannot by any possibility better the heart of man. He who is forced upon his knees has the attitude, but never the feeling, of prayer.

I am satisfied that the discipline of the average prison hardens and degrades. It is for the most part a perpetual exhibition of arbitrary power. There is really no appeal. The cries of the convict are not heard beyond the walls. The protests die in cells, and the poor prisoner feels that the last tie between him and his fellow men has been broken. He is kept in ignorance of the outer world. The prison is a cemetery, and his cell is a grave.

In many of the penitentiaries there are instruments of torture, and now and then a convict is murdered. Inspections and investigations go for naught, because the testimony of a convict goes for naught. He is generally prevented by fear from telling his wrongs; but if he speaks, he is not believed he is regarded as less than a human being, and so the imprisoned remain without remedy. When the visitors are gone, the convict who has spoken is prevented from speaking again. Every manly feeling, every effort toward real reformation, is trampled under foot, so that when the convict's time is out there is little left on which to build. He has been humiliated to the last degree, and his spirit has so long been bent by authority and fear that even the desire to stand erect has almost faded from the mind. The keepers feel that they are safe, because no matter what they do, the convict when released will not tell the story of his wrongs, for if he conceals his shame, he must also hide their guilt.

Every penitentiary should be a real reformatory. That should be the principal object for the establishment of the prison. The men in charge should be of the kindest and noblest. They should be filled with divine enthusiasm for humanity, and every means should be taken to convince the prisoner that his good is sought-that nothing is done for revenge-nothing for a display of power, and nothing for the gratification of malice. He should feel the warden is his unselfish friend. When a convict is charged with a violation of the rules-with insubordination, or with any offense, there should be an investigation in due and proper form, giving the convict an opportunity to be heard. He should not be for one moment the victim of an irresponsible power. He would then feel that he had some rights, and that some little of the human remained in him still. They should be taught things of value-instructed by competent men. Pains should be taken, not to panish, not to degrade, but to benefit and ennoble.

We know, if we know any thing, that men in the penitentiaries are not altogether bad, and that many out are not altogether good; and we feel that in the brain and heart of all there are the seeds of good and bad. We know too that the best are liable to fall, and it may be that the worst, under certain conditions, may be capable of grand and heroic deeds. Of one thing we may be assured-and that is, that criminals will never be reformed by being robbed, humiliated and degraded.

Ignorance, filth and poverty are the missionaries of crime. As long as dishonorable success outranks honest effort-as long as society bows and cringes before the great thieves, there will be little ones enough to fill the jails.

Eleventh. All the penalties, all the punishments, are inflicted under a belief that man can do right under all circumstances-that his conduct is absolutely under his control, and that his will is a pilot that can, in spite of winds and tides, reach any port desired. All this is, in my judgment, a mistake. It is a denial of the integrity of nature. It is based upon the super

natural and miraculous, and as long as this mistake remains the corner stone of criminal jurisprudence, reformation will be impossible.

We must take into consideration the nature of man the facts of mind-the power of temptation-the limitations of the intellect-the force of habit-the result of heredity-the power of passion-the domina tion of want-the diseases of the brain-the tyranny of appetite-the cruelty of conditions-the results of association-the effects of poverty and wealth, of helplessness and power.

Until these subtle things are understood-until we know that man, in spite of all, can certainly pursue the highway of the right, society should not impoverish and degrade, should not chain and kill, those who, after all, may be the helpless victims of unknown causes that are deaf and blind.

We know something of ourselves-of the average man-of his thoughts, passions, fears and aspirations something of his sorrows and his joys, his weakness, his liability to fall-something of what he resists-the struggles, the victories and the failures of his life. We knew something of the tides and currents of the mys terious sea-something of the circuits of the wayward winds-but we do not know where the wild storms are born that wreck and rend. Neither do we know in what strange realm the mists and clouds are formed that dim and darken all the heaven of the mind, nor from whence comes the tempest of the brain in which the will to do, sudden as the lightning's flash, seizes and holds the man until the dreadful deed is done that leaves a curse upon the soul.

We do not know. Our ignorance should make us hesitate. Our weakness should make us merciful.

I cannot more fittingly close this address than by quoting the prayer of the Buddhist: "I pray thee to have pity on the vicious-thou hast already had pity on the virtuous by making them so."

Whether beer is an intoxicating liquor is a question of fact for the jury.

A

PPEAL from Supreme Court, General Term, Second Department.

L. L. Van Allen, for appellant.

Charles H. Noxen, for respondent.

BROWN, J. The plaintiff is the widow of William T. Blatz, who committed suicide by hanging while in a condition of intoxication. The action is brought under the statute known as the "Civil Damage Act," and the plaintiff had a verdict at the Circuit, which was affirmed at the General Term.

The undisputed proof on the trial showed that Blatz spent the evening preceding his death in the defendant's saloon, and that while there he drank two or three glasses of beer. The court charged the jury that he drank intoxicating liquors that evening at defendant's saloon. The exception taken to this part of the charge raises the only question that it is necessary to discuss on this appeal, and we are called upon to decide whether the term "beer," in the absence of all evidence as to its quality and effect, imports au intoxi cating beverage. 'Beer," as it is ordinarily understood, and as it is defined in the dictionary, is a "fermented liquor." It is made from malted grains, with hops, or from the extract of roots and other parts of

*Reversing 42 Hun, 402.

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39 66

various plants, as spruce, ginger, sassafras, etc. It is known under various names, and designated as "ale," "porter," "stout," "strong beer," "small beer," “lager,' spruce beer," etc. The courts take notice that many of the beverages sold under the name of "beer are not intoxicating, while the stronger kinds, as ale, porter, and strong beer, are of an intoxicating character. Nevin v. Ladue, 3 Den. 437-450; Rau v. People, 63 N. Y. 277. It would seem therefore that a term which included both intoxicating and non-intoxicating liquors could not be said, in its ordinary meaning, necessarily to imply an intoxicating drink, unless such import has been given to it either by statute or by the decision of the courts. The word was first introduced into our present excise law in 1873, chapter 549, which prohibited the sale without license, in quantities less than five gallons, of strong and spirituous liquors, wines, ale and beer. The expressed purpose of the statute was to regulate the sale of intoxicating liquors. Since the enactment of that law, this court decided, in Rau v. People, supra, that lager beer could not be held to be au intoxicating liquor without proof of that fact. It was there said: "As to such wellknown beverages as whisky, brandy, gin, ale and strong beer, the courts, without proof, acting upon their own knowledge, derived from observation, will take notice that they are intoxicating, and will therefore require no proof of the fact. But there are, doubtless, intoxicating beverages which are not so well known, and of whose character the courts could not take notice, and more intoxicating beverages may yet be discovered. As to all such, when one is charged with selling them in violation of law, there must be proof that they are intoxicating before a conviction can be had. Hitherto the courts have not been willing to take notice that lager beer is intoxicating, but have submitted the question, when controverted, to the jury, to be determined upon the evidence." The use of the word in the statute is in entire harmony with the views expressed in the case cited. The Legislature recognized the fact, of the existence of which courts take judicial notice, that fermented liquor may or may not be intoxicating. Some of it is, and some of it is not. The sale of the former was forbidden, not so as to the latter. Proof could always be given on a prosecution for violation of the law as to the character and effect of the particular drink sold under the name of "beer," and thus the law would be executed. It plainly was not the intention of the Legislature to prohibit the sale of the numerous kinds of mild drink sold under the name of "beer," and I think it may be affirmed that the term, as now used, if it imports any particular beverage, is generally understood to refer to "lager." This construction gives full effect to the law, and, under this expansive meaning of the word, the sale of all fermented liquors which are shown to be intoxicating will be regulated. To adopt the contrary view will violate the cardinal rule which is applied in all criminal prosecutions, viz., that the prosecution must prove every fact essential to establish the guilt of the person charged with a crime. The fact of the sale of intoxicating liquor must be established. As to strong and spirituous liquors, the courts take notice of their intoxicating character, and that stands in lieu of evidence. But, as to the milder kinds of drink, proof of their intoxicating character must be adduced. If therefore on the trial, on proof of the sale of beer, without any evidence as to its character or quality, the jury is to be instructed that it is of the kind that intoxicates, the court assumes a fact not proven, and the burden of showing that it is of a non-intoxicating character is put on the defendant. As well might a person be convicted of grand larceny by proof of the theft of a watch, or of burglary in the first degree by proof the breaking into an inhabited dwelling. But, as in the first-named offense the value of the watch is

an essential ingredient of the crime, and in the second it is necessary to prove that the offense was committed in the night-time, so, with the sale of beer, it must be shown that it was of an intoxicating character; otherwise, there has been no violation of the law. The court can indulge in no presumption in the case, except as to the innocence of the accused; and, until it appears by sufficiency of proof that the particular beverage sold was of an intoxicating kind, the presumption of innocence controls the case. This rule applies not only to prosecutions distinctly criminal, but to penal actions, where the plaintiff seeks to charge the adverse party with a penalty or forfeiture, and is particularly applicable in an action like the present, where the consequences may be as disastrous to a defendant as they appear to have been in this case. It is said however that by the decision of the courts it has been decided that the word imports an intoxicating beverage. The only case that so holds, that I have been able to find, is People v. Wheelock, 3 Parker, 9, which was a decision of the General Term of the seventeenth district in 1855. The decision is based upon Nevin v. Ladue, 3 Den. 43, and same case in error, page 437, and on the definition of the word in Webster's dictionary.

In Nevin v. Ladue, the defendant was charged with selling "ale, strong beer or fermented beer," and admitted the sale, but claimed that it was not prohibited by statute. The Supreme Court affirmed the conviction on the authority of the definition of the word "beer" in Webster's dictionary, which was said in the opinion to be "a spirituous liquor, made from grain," etc. It may be that the early edition of Webster's dictionary so defined the word, but the later editious do not describe beer as a spirituous liquor, but as a "fermented liquor." Worcester's dictionary gives the same definition to the word. This decision was reversed by the Court of Errors on the ground that the admission of a charge made in the alternative imputed nothing more than that the defendaut had sold "fermented beer," and that that term, in the connection in which it was used, covered various kinds of beer, which had long been in use in this country, under the different names of spruce beer,' ginger beer," etc., which had never been considered as intoxicating, either here or in England. There is nothing in the report of the case to show that the court concurred in the views of the chancellor on the meaning of the word "beer." Three other opinions were delivered, in all of which it was maintained that the question whether ale or strong beer was within the prohibition of the excise laws did not arise in the case; and the case is an authority for nothing more than that an admission of selling "fermented beer" was not a violation of the statute against selling strong and spirituous liquors. Any attempt to distinguish between "beer" and "fermented beer" would, I think, be a failure. Beer is a fermented liquor; and, unless the particular beverage under consideration is a fermented liquor, it is not beer. Strong beer, small beer, and ale are always, here and in England, recognized as intoxicating drinks, as is shown by the very interesting opinion of the chancellor in the case cited, but the term "fermented beer" or "beer" includes them all, and mauy more, besides, that are not intoxicating. The decision in People v. Wheelock is not therefore sustained by the authorities cited to support it. In Commissioners v. Taylor, 21 N. Y. 173, the defendant was charged with selling "strong beer," and this court held it within the meaning of the term "strong and spirituous liquors." People v. Wheelock was cited and referred to in the opinion, but I do not understand that it received the approval of the court. Indeed, the opinion recognizes the rule laid down in Rau v. People, supra, that a distinction must be made between such liquors as are capable of causing intoxication and those containing so small a percentage of alcohol that the hu

man stomach cannot contain sufficient of the liquor to produce that effect," and cites spruce beer, lager beer, and others among the latter kind. Killip v. McKay, 13 N. Y. St. Rep'r, 5, was an action for penalties under section 13, chapter 628, Laws 1857. The General Term of the fifth department held that the evidence in that case was susceptible of the construction that the "beer" that the witness drank had the taste and quality of ale or strong beer, and, although it might have been sold under the name of "lager beer," possessed properties which were intoxicating, and upheld the verdict of the jury. It thus appears that none of the cases, except People v. Wheelock, have attempted to give to the word "beer" a meaning imputing an intoxicating liquor, but all recognize the fact that some kinds of beer are intoxicating, and some are not. While it is not necessary to say that the word would include in its ordinary meaning such mild drinks as spruce beer or ginger beer it certainly would include lager beer, which is one of the best known, and probably the most extensively used, of the malted liquors. But, as has been shown, lager beer is not to be deemed intoxicating, without the proof of the fact. I do not see therefore how, on proof of a sale of beer, the jury could say that it was strong beer, or intoxicating beer. It might have been lager beer; and, if it was, they were not authorized, on the proof, to find for the plaintiff. The proper rule is to require, in all prosecutions for violation of the statute for selling beer, proof of the character and quality of the particular beverages sold. Full effect is thus given to the intention of the Legislature to regulate the sale of those liquors which are intoxicating, and the rules that must apply to all prosecutions of a criminal character are maintained. In this case, the jury might very well have found from the plaintiff's evidence that the particular beer drank by the plaintiff's husband was intoxicating; but that question was withdrawn entirely from their consideration, and they were not permitted to exercise their judgment upon it. For this error the judgment should be reversed, and a new trial granted, with costs to abide the event.

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VANN, HAIGHT and PARKER, JJ., concur. BRADLEY, J. (dissenting), said: * * It is well understood that all spirituous liquors are intoxicating, and that all intoxicating liquors are not spirituous. As commonly used, the term spirituous liquors does not embrace fermented liquors. The latter may, or may not, be strong and intoxicating. Some of it is, and some of it is not so. Nevin v. Ladue, 3 Den. 437. The question whether the words "intoxicating liquors" embraced lager beer arose in Rau v. People, 63 N. Y. 277. It was there remarked that the courts had not then been willing to take notice that lager beer was intoxicating, and therefore proof of the fact was essential to justify a conviction for a sale of it in violation of the statute. In the Revised Statutes the liquors which it was penal to sell at retail, without license, were designated as strong or spirituons. And in People v. Wheelock, 3 Parker, 9, it was held that the word "beer," in its ordinary sense, denoted a beverage which was intoxicating, and came within the meaning of the words "strong or spirituous liquors," as used in the statute. That case was cited, with apparent approval, in Commissioners v. Taylor, 21 N. Y. 173, 175, in which Nevin v. Ladue was cited and explained. And such was the view of the court in People v. Hart, 24 How. Pr. 289. There has also been some legislative import given to the word "beer" in its use to designate a liquor used as a beverage. In the "act to suppress intemperance, and to regulate the sale of intoxicating liquors" (Laws 1857, chap. 628, § 5), as amended by Laws 1873, chapter 549, section 3, the inhibited sale was applied to "strong or spirituous liquors, wines, ale or beer." The evident purpose of the

statute was to regulate the sale of intoxicating liquors, and those there expressly mentioned must be deemed within the intended legislative denunciation as such liquors. They are treated by the statute as intoxicating liquors, and therefore within its purpose to place the regulated restriction upon their sale and disposition for use as a beverage. And it may be presumed that such legislative action and intent were founded upon the requisite information. Rumsey v. People, 19 N. Y. 41, 47. It is a fact, of which notice may be taken, that there are fermented liquors and malt liquors which will produce intoxication; and in view of the statute and cases already referred to, the conclusion is fairly required that the word "beer," unqualifiedly applied to liquor sold or given away to be used as a beverage, presumptively imports intoxicating liquor. It was so held in Briffitt v. State, 58 Wis. 39. FOLLETT, C. J., and POTTER, J., concur.

KANSAS SUPREME COURT, DEC. 7, 1889. ATCHISON, TOPEKA & SANTA FE RAILROAD Co. V. LINDLEY.

Where a shipper of stock was on a freight train accompanying two loads of his stock, which were being transported to market, and the train had attached to it a caboose for the shippers on the train to ride in, and while the train was stopping at a station, the conductor addressed the shipper as follows: "You get on top, and help signal, until the last load of hogs comes up, and we will water them," and the shipper voluntarily obeyed the order or direction, and got upon the train moving backward, and while on the top of the train, near to the end of a car, watching a brakeman trying to make a coupling, was severely injured by a sudden forward motion or jerk of the train, without any signal thereof, held, that as the shipper voluntarily placed himself in a position of known danger, and as he was not upon the top of the train to look after or care for his stock, the railroad company is not liable in damages for his injuries.

ER

RROR from Circuit Court, Sumner county. J. T.
Herrick, judge.

George R. Peck, A. A. Hurd and Robert Dunlap, for plaintiff in error.

Charles Willsie and McDonald & Parker, for defendant in error.

HORTON, C. J. This was an action by D. C. Lindley against the Atchison, Topeka and Santa Fe Railroad Company for injuries received while travelling on a stock train, and resulted in a verdict against the company for $9,650. McCambridge was the conductor of the train, Allen was the engineer and Guy the head brakeman. Lindley was a live-stock dealer, fifty years of age, residing in Albion, Harper county, in this State. He had shipped live-stock for thirty-four years. The alleged cause of action occurred on the 16th day of July, 1885. Lindley had shipped on the defendant's train one car-load of hogs, and one car-load of cattle, from Perth station, in Sumuer county, to be transported to Kansas City, Mo., and was on top of one of the stock-cars just before his injuries. He arrived at Eudora, a station between Topeka and Argentine, between five and six o'clock in the morning. The train consisted of forty-five cars, loaded with stock. Soon after arriving at Eudora, eight or ten of the cars, with the caboose, broke or separated from the main train. The petition alleged, among other things, that "the coo ductor then in charge of the train, totally disregarding the safety of human life, and being grossly careless of the safety of the passengers on the train, and well understanding the culpably negligent manner in which the engineer was handling the train, carelessly

and to prohibit any of the acts referred to, unless it be riding upon the cow-catcher, which is so manifestly dangerous and improper that it has not been deemed necessary to prohibit it. We are unable to see how a conductor, in violation of a known rule of the company, can license a man to occupy a place of danger so as to make the company responsible."

In Railroad Co. v. Greiner, 113 Penn. St. G00, it is said: "Where one negligently, and without excuse, places himself in a position of known danger, and thereby suffers an injury at the hands of another, either wholly or partially by means of his own act, he cannot recover damages for the injury sustained. The contributory negligence which prevents recovery for an injury however must be such as co-operates in causing the injury, and without which the injury would not have happened."

In Railway Co. v. Miles, 13 Am. & Eng. Rail. Cas. 10, it is said: "But there are certain portions of every railroad train which are so obviously dangerous for a a passenger to occupy, and so plainly not designed for his reception, that his presence there will constitute negligence as a matter of law, and preclude him from claiming damages for injuries received while in such position. A passenger who voluntarily and unneces sarily rides upon the engine or the tender, or upon the pilot or bumper of the locomotive, or upon the top of a car, or upon the platform, cannot be said to be in the exercise of that caution and discretion which the law requires of all persons who are of full age, of sound mind, and ordinary intelligence. * * *

* *

*

In Flower v. Railroad Co., 69 Penn. St. 210; 8 Am. Rep. 251, an engine with one freight-car had been detached from a train, and was stopped at a water station. The fireman requested a small boy, standing near, to put in the hose and turn on the water. While he was clinging on the tender to do this, the other freight-cars belonging to the train came down without a brakeman, and struck the car behind the tender. The boy fell and was crushed to death. The court held that the company owed no special duty to the boy, saying: "The case turns wholly on the effect of the request of the fireman, who was temporary engineer. Did that request involve the company in the consequences? The fireman, through his indolence or haste, was the cause of the boy's loss of life. Unless his act can be legally attributed to the company, it is equally clear the company was not the cause of the injury. The maxim, qui facit per alium facit per se, can only apply where there is an authority, either general or special. It is not pretended there was a special authority. Was there a general authority which would comprehend the fireman's request to the boy to fill the engine-tank with water? This seems to be equally plain without resorting to the evidence given that engineers are not permitted to receive any one on the engine but the conductor and fireman or superintendent; that it is the duty of the fireman to supply the engine with water; that he has no power to invite others to do it, and can leave his post only on a necessity."

In Railroad Co. v. Jones, 95 U. S. 439, Jones was one of a party of men employed by a railroad company in constructing and repairing its roadway. They were usually conveyed by the company to and from the place where their services were required, and a boxcar was assigned to their use. Mr. Justice Swayne, delivering the opinion of the court, said: "The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cow-catcher, and obviously a place of peril, especially in case of collision. There was room for him in the box-car. He should have taken his place there. He could have gone into the box-car in as little, if not less, time than it took to climb to the pilot. The knowledge, assent

or direction of the company's agents as to what he did is immaterial. If told to get on anywhere, that the train was late and that he must hurry, this was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cow-catcher, or put himself on the track before the advancing wheels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant, nor non compos. The liability of the com pany was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box-car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to bis own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an ap proach to a demonstration as any thing short of mathematics will permit."

In Railway Co. v. Propst, 83 Ala. 518, it was decided that "a railroad company is liable, as principal, for injuries received by a person who was employed by the conductor of a freight train as a brakeman during the trip, while acting under the orders of the conductor in coupling cars; but not if the person so acting and injured was only a passenger who was not employed by the conductor, nor under any obligation to obey his orders." In the opinion rendered by Chief Justice Stone it was said that," so far as this count informs us, the plaintiff was a mere passenger on the train; and so far as the right to control or direct the movements of the plaintiff is shown in this count, the conductor would have had as much authority over any other passenger, or even a by-stander, as he had over him. Such order or direction, as averred, is entirely without the routine of the conductor's duties."

In Railway Co. v. Propst, 85 Ala. 203, the conductor addressed the plaintiff as follows: "Will, come here, and make this coupling for me;" and the plaintiff was injured in conforming to this order or request. The court said such an order or direction could not fasten a liability on the railroad corporation. See also Gilliam v. Railroad Co., 70 Ala. 268; Howard v. Railroad Co., 41 Kan. 403.

We are referred to Railroad Co. v. Horst, 93 U. S. 291, as decisive in favor of the recovery of the plaintiff. That case decides that a shipper accompanying his stock on the train is entitled to the rights of a passenger, but in many particulars widely differs from this. In that case the shipper was commanded by the conductor to get out of the caboose, and go on top of the train, because the caboose was about to be detached. The shipper had no choice but to obey, or leave his stock to go forward without any one to ac company or take care of them. In this case there was a caboose accompanying the train, where the plaintiff might have ridden in safety. He did not go upon the top of the train to accompany his stock, or to take care of them. He went, as before stated, merely to comply with the order or request of the conductor to assist in signalling the train. The other cases referred to by the plaintiff are not contrary, we think, to the law as before declared.

In answer to one of the questions, the jury stated that the plaintiff was not "guilty of negligence in going on top of the train at Eudora just prior to the accident." This finding of the jury however is not conclusive. If the plaintiff's evidence, with all the legitimate inferences, which a jury might reasonably draw from it, is insufficient to sustain a verdict in his favor, so that a verdict for the plaintiff, if one should be returned, would be set aside, the court may properly direct a verdict for the defendant without submitting the evidence to the jury. In Railroad Co. v. Plunkett, 25 Kan. 188, the jury found that Plunkett, at the time