herein contained shall be construed to affect such as conscientiously observe the seventh day of the week as the Sabbath, travelers, families, removing, keepers of toll-bridges and toll-gates, and ferrymen, acting as such." 1

We will now give the evidence as it is contained in the record: — William Kimball, a witness for the State, testified as follows: "My name is William Kimball. I live in Gibson County, Indiana. I know the defendant, Silas Wilkinson; that is him (pointing to the defend. ant). Have known him for several years. On the 12th day of August, 1877, I saw the defendant hauling watermelons; that day was Sunday, he was hauling a wagon load with two horses; it was some time in the afternoon of that day that I saw him; he was going in the direction of Evansville, Indiana. It was in Gibson County, State of Indiana, that I saw defendant hauling watermelons on that Sunday; he had about one hundred watermelons in the wagon."

On cross-examination this witness testified: "The defendant, Wilkinson, resides upon a farm about twenty-five or twenty-six miles from Evansville; his melon patch was on his farm."

The State then rested.

William H. Overton, a witness for appellant, testified as follows: "My name is William H. Overton. I reside in Gibson County, Indiana; have lived here continuously for fifteen or sixteen years. Am a farmer. I have had a great deal of experience raising watermelons; I have raised them for several years. I know the defendant, Silas Wilkinson; have known him for a long time; he raised a patch of melons last season, the summer of 1877; he had four or five acres in the patch. On the 12th day of August, 1877, I was in his melon patch. It was on his farm, near the house in which he lives; at that time there were between five and six hundred melons in that patch, on that day, that had spoiled; they had grown too ripe and begun to decay. There were as many more just right to be plucked from the vine. Watermelons

will not last but a short time after getting ripe; they ought to be used at once. It depends upon the weather largely how long they will last. I have known thousands destroyed in from twelve to twenty-four hours after they first got ripe."

On cross-examination this witness testified: "Nearly every one who raises melons loses more or less of them. There are a great many raised in the neighborhood where Wilkinson lives. The reason they lose them is because watermelons get ripe all at once, and it is next to an impossibility to get them all to market."

1 2 Rev. Stats. 1876, p. 483.

The appellant, as a witness in his own behalf, testified as follows: "My name is Silas Wilkinson. I reside in Gibson County, Indiana; have lived in this county continuously for the past twenty-five years. Am a farmer; am the defendant in this suit. In the summer of 1877, I Jaised a patch of watermelons on my farm in this county. I had only the one patch in the summer or during the year 1877. On Sunday, the 12th day of August, 1877, I started with a two-horse wagon-load of watermelons taken from my patch, for Evansville, Indiana. Evansville is twenty-six miles from my farm. Evansville was my market for my melons at that time. On that Sunday there were at least five or six hundred melons in my patch dead ripe and ready for the market. There were at least as many more then spoiled for the want of being plucked from the vines and taken to market. The 12th of August, 1877, was right in the middle of the melon season, and they would get ripe faster than I could haul them to market. I could only haul about one hundred melons at a load. I had to haul them twenty-six miles. I had only one team of my own. Joel Grigsby had helped me all the week before until Friday before this Sunday, when he was taken sick. I tried to get other help and could not. I hauled all the week before, and all the week beginning on August 12th, 1877. I saved the load of melons I started with on that Sunday. I lost at least two thousand melons that season because I was unable to get them to market.”

On cross-examination the appellant testified: "I loaded up my melons on Saturday night before the Sunday, August 12th, 1877. I started for Evansville early in the afternoon of that Sunday. I did not start in the morning because there were relatives visiting my family, and because I could reach the Monday morning market at Evansville by waiting until the afternoon. I could, perhaps, have left home at midnight on Sunday night, and reached Evansville by the time I left there on Monday morning. I did not do it because my team would have been exhausted, and I would have lost time on Monday. I went within two miles of Evansville on Sunday. Early Monday morning, with a fresh team, I drove to Evansville, disposed of my melons, and I started at once, by nine o'clock a. m., for home. I reached home in time to load up another load for Tuesday's market. I did not start with another load until Tuesday morning early. I might have started at midnight, Sunday night, reached Evansville by the time I started home on that Monday, disposed of my melons, and returned immediately home, but the effort would have exhausted my team. I could have started at or after twelve o'clock on the night after the Sunday in question, and got to Evansville about nine o'clock on the Monday morning following, rested my horses and started home in the afternoon on the said Monday, and got home in time to load up again and be ready to start again on the

Tuesday following, by the time I did start on said Tuesday, but it would have made me late in the evening on Monday loading up. I could not make a load each day, but only a load every other day. I was before John Martin, a justice of the peace, to answer to the same charge for which I am now being tried. I then plead guilty, and was fined one dollar. It was some time in September, 1877."

Joel Grigsby, a witness for the appellant, testified as follows: "My name is Joel Grigsby. I live in Gibson County, Indiana; have lived here for fifteen years; am a farmer. I know the defendant, Silas Wilkinson; have known him for several years. I have raised watermelons for several years. I was in defendant's watermelon patch on the Friday before August 12th, 1877. I had been hauling melons to Evansville all that week, out of that patch for Wilkinson. I could only haul a load every two days. I would go down one day and back the next. I quit hauling on Friday because I was not well. There were a great many melons then in the patch that were spoiling for the want of being plucked from the vines and used. I should say there were five hundred that ought to have been taken that day to market, besides a number that were already spoiled because they had not been taken sooner."

This was all the evidence on the trial of this cause, as the same appears in the record. Under this evidence the question arises, and this is the main question in this case, was there a "necessity," within the meaning of that word as the same is used in the statute before cited, that the appellant should perform the common labor charged in the indictment, on the first day of the week, commonly called Sunday? It is well settled, we think, that by the word "necessity," as used in the statute, is not meant that the necessity for the work on which the charge is predicated should be a physical or absolute necessity. Such labor, on Sunday, as may be necessary to the accomplishment of a lawful purpose, under the circumstances of any particular case, can not be considered as within the purview and prohibition of the statute for the protection of the Sabbath.

In the case of Morris v. State,1 where the appellant had been engaged in hauling and boiling sugar water, on a certain Sunday, and it appeared that it was a good day for the flowing of the water, that the appellant's troughs were full and overflowing, and that he had no way to save the water but by gathering and boiling it, it was held by this court that his labor was a work of necessity, within the meaning of the term as used in the statute.

So, also, in the case of Crocket v. State, 2 it was held that such labor,

on Sunday, as was a necessary incident to the accomplishment of a lawful purpose, such as the manufacture of malt beer, was a work of necessity, within the meaning of those words, as the same are used in the law for the protection of the Sabbath.

The two cases cited from our own reports are well supported by the decisions of the courts of other States, on statutes similar to the statute of this State. These decisions are cited as authorities in our own cases before noticed, and we refer to them there without again citing them.

It is difficult, if not impossible, to distinguish the case at bar, in principle, from the case of Morris v. State, before referred to. The melon season, like the sugar-making season, is of but short duration, "depending on the season and the weather." In this case it would seem that a kind Provinence had crowned the labors of the appellant with a bounteous harvest of melons. They were ripening and decaying much faster than, with the facilities and labor at his command, he could possibly get them to market. His melon patch was twenty-six miles from his market. He could only haul a load to market every two days, and a load was one hundred melons. He could not hire any assistance. On Sunday, August 12th, 1877, the day mentioned in the evidence, there were at least five or six hundred melons in his patch, “dead ripe and ready for the market." A ripe watermelon in its season is a luxury, but there is nothing more "stale, flat and unprofitable" than a decayed or rotten melon. Under the circumstances, what was the appellant to do? It seems to us that it was his duty, as a prudent and careful husbandman, to labor diligently in getting as many of his melons as he could into market, so that the fruits of his toil might not be wasted or suffered to decay. Whatever it was his duty to do in the premises there was a moral necessity for him to do. And, in the accomplishment of the main purpose of saving and securing the benefit of his crop of melons, whatever labor he was reasonably required to do on Sunday, must be regarded, as it seems to us, as a work of necessity.

Under the circumstances shown by the evidence in this case, it seems to us that the labor in which the appellant was engaged on Sunday, August 12, 1877, and for which he was indicted, was a necessary incident to the accomplishment of a lawful purpose, namely, the saving and getting into market his crop of melons, and was, therefore, a work of necessity, within the meaning of that expression as the same is used in the statute for the protection of the Sabbath. Nor do we think that the fact that, by getting up at midnight on Sunday night and driving all the remainder of the night, he could have reached Evansville in time for the Monday morning market, made his labor on Sunday afternoon any the less a work of necessity. It is not necessary to the pro

tection of the Sabbath that men should abuse or overwork either themselves or their horses by midnight labor; and, in our opinion, it is no desecration of the Sabbath to garner and secure on that day the fruits of the earth, which would otherwise decay and be wasted.

In the Kentucky Court of Appeals, June, 1882.

1. The Words or Other Work of Necessity" in the Sunday law exempt a person from the penalty of the statute when his work is one of necessity to others, as if he be a brakeman on a railroad, apothecary, dairyman or hotel-keeper. These words are designed to apply to the wants of the citizen, adapting the language, in its construction, to the manners, habits, wants and customs of the people they are to affect.

The law Regards that as Necessary which the common sense of the country, in its ordinary mode of doing business, regards as necessary.

3. A Railroad Company Engaged in Running Freight and passenger trains on the Sabbath when such work is necessary to discharge its duties and obligations to the public, and to comply with its contracts as a carrier for hire, engaged in transporting passengers and mails of the United States, and in carrying live stock, goods and merchandise from one point to another, in and out of the State is prosecuting a “work of necessity."

4. Semble, the Running of Street Cars is a work of necessity.

5. The Servants of a Railroad Company engaged in running freight and passenger trains on the Sabbath, are engaged in a “work of necessity."

The opinion of the court was delivered by

PRYOR J. This action was instituted in the name of the Commonwealth against the Louisville and Nashville Railroad Company, for an alleged violation of section 10,1 which provides: "No work or business shall be done on the Sabbath day, except the ordinary household offices, or other work of necessity or charity. If any person, on the Sabbath day shall himself be found at his own or any other trade or calling, or shall employ his apprentices, or other person, in labor or other business, whether the same be for profit or amusement, unless such as is permitted above, he shall be fined not less than two, nor more than fifty dollars for each offense. Every person or apprentice so employed shall be deemed a separate offense. Persons who are members of a religious society who observe as a Sabbath any other day in the week than Sunday, shall not be liable to the penalty prescribed in this section, if they observe as a Sabbath one day in each seven as herein provided."

1 art. XVII., ch. 29, Gen. Stats.