Gilyard v. State

• Decision Date: 25 May 1893
• Citation: 13 So. 391,98 Ala. 59
• Parties: GILYARD v. STATE.
• Court: Alabama Supreme Court

13 So. 391

98 Ala. 59

GILYARD v. STATE.

Supreme Court of Alabama

May 25, 1893

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Harry Gilyard was convicted of shooting into a car of a railroad train, and he appeals. Affirmed.

The third charge requested by defendant, reference to which is made in the opinion, was in the following language: "The testimony of a single witness under a cloud, and who is contradicted in material matters, is not such preponderance of testimony as will warrant the jury in convicting the defendant; and, if the jury find from the evidence this to be the condition of this case, it is their duty to discharge the defendant."

Wm. L Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was indicted, tried, and convicted, under section 4098 of the Criminal Code, for shooting at or into a locomotive or car of a railroad train, in or on which there was a human being. The only questions reserved arise upon the refusal of the court to give three several charges as requested by the defendant. The first was the general affirmative charge to find for the defendant. There was positive evidence by one witness that he saw defendant commit the offense. The charge was properly refused. The second charge refused was to the effect that the jury must not convict upon the uncorroborated testimony of an impeached witness. This charge was properly refused, first, because there was some corroborating testimony. Two other witnesses testified to seeing the defendant at Thorin, where the offense was committed, on the night of the Sunday on which the shooting occurred. Second, the record fails to show that the witness was impeached. Two witnesses for the defendant testify that the witness for the state told them in a conversation that he did not see the defendant do the shooting. No predicate was laid for the introduction of this conversation. The witness for the state was not asked in reference to it. He never denied making the statement, and had no opportunity either to admit or deny or explain it. Moreover, the principle of law intended to be asserted was incorrect. The rule in this state is that such a charge invades the province of the jury. They are the judges of the weight to be given to the testimony of any witness. Nabors v. State, 82 Ala. 8, 2 South. Rep. 357; Moore v. State, 68 Ala. 360. For the same reasons the third charge requested was properly refused. In addition...