Davis v. State
| Decision Date | 05 June 1917 |
| Docket Number | 6 Div. 384 |
| Parties | DAVIS v. STATE. |
| Court | Alabama Court of Appeals |
On Rehearing, June 26, 1917
Appeal from Circuit Court, Walker County; T.L. Sowell, Judge.
William Davis was convicted of train wrecking, and appeals. Affirmed.
In his argument to the jury the solicitor said:
"If defendant recklessly put the spike on the track then he would be guilty."
Also:
"They showed defendant the spike, and he acknowledged that was the spike he put on the railroad, and there was no evidence of influence over defendant to cause him to make the statement."
Also:
"If a man puts a spike on the track where a railroad train is liable to come along, isn't that wantonly done?"
The first count in the indictment charged that defendant wantonly or maliciously placed an impediment or obstruction, to wit an iron or steel spike, on a railroad (naming it), in such a manner as to render liable any engine to diverge or be thrown from the track upon which it was running, and upon which said spike was so placed.
The following charge was refused to defendant, and not noted as covered by the given charge:
"(23) I charge you that, if there be one single fact proven to the satisfaction of the jury, which fact is consistent with the guilt of defendant, this may be sufficient to raise a reasonable doubt in your mind, and, if so, the jury should acquit."
Leith & Gunn and George W. Powell, all of Jasper, for appellant.
W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.
The defendant was indicted, tried, and convicted for train wrecking. In answer to the indictment he plead "not guilty" and "not guilty by reason of insanity."
The several counts in the indictment follow almost literally the words of the statute. Acts 1911, p. 381. The demurrers thereto were properly overruled.
The motion to quash the venire was properly overruled, no proof having been offered to show that J. Robert Odom whose name appears on the regular panel and the J. Robert Odom whose name appears on the special venire were one and the same person. Identity of names without anything more is not prima facie presumptive of the identity of persons. Stevenson v. Murray, 87 Ala. 442, 6 So. 301. There might have been two persons of the same name in this same precinct, and the burden was upon the defendant, in support of his motion, to affirmatively show that they were one and the same person. Failing to offer proof to this end, the motion to quash the venire was not sustained by the proof, and was therefore properly overruled. Noel v. State, 161 Ala. 25, 49 So. 824; Lafayette Jones v. State, 74 So. 843. A careful and thorough examination of the numerous questions presented relative to the rulings of the court upon the evidence clearly shows that no error appears prejudicial to the substantial rights of the defendant. We do not deem it necessary, therefore, to discuss in detail these several questions; as it does not appear that any new principle of law is involved or that any question is presented which has not been passed upon many times by the Supreme Court, and also by this court. There was ample evidence to support the verdict of the jury.
The argument of the solicitor to which exception was reserved was a mere misstatement of the law by which the jury was in no sense bound in their consideration of this case. This erroneous statement of the law was fully and thoroughly corrected and covered by the court in its oral charge to the jury, and if the action of the court in overruling the objection to the solicitor's argument could be termed error, we are clearly of the opinion, after an examination of the entire cause, that the error complained of has not injuriously affected the substantial rights of the defendant. The jury are required to take the law from the court, and from no other source, and in the instant case it clearly appears that the court with great care gave a...
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...Seely, 29 Ill. 495; Liddon v. Hodnett, 22 Fla. 442, 443; Prescott v. Tufts, 7 Mass. 209; Ellsworth v. Moore, 5 Iowa 486; Davis v. State, 16 Ala.App. 149, 75 So. 825; Howard v. Lock, Ky., 22 S.W. 332; and see annotation, Ann.Cas.1917E, Since there was no proof, nor finding by the jury, nor r......
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Gayden v. State, 3 Div. 722
...The statute was § 4247, Code of 1923, Title 14, § 275, Code of 1940. The conviction was affirmed. The indictment in Davis v. State, 16 Ala.App. 149, 75 So. 825, 826, was for train wrecking. The Court of Appeals said: 'The several counts in the indictment follow almost literally the words of......
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...charge as to the law of manslaughter in the first degree, eradicated any injurious effect of the Solicitor's statement. Davis v. State, 16 Ala.App. 149, 75 So. 825, certiorari denied 200 Ala. 577, 76 So. 935. Defense counsel insists the jury was confused and misled as to the law of the case......
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