Jackson v. State

• Decision Date: 16 October 1924
• Docket Number: 4437.
• Citation: 124 S.E. 874,159 Ga. 133
• Parties: JACKSON v. STATE.
• Court: Georgia Supreme Court

124 S.E. 874

159 Ga. 133

JACKSON v. STATE.

No. 4437.

Supreme Court of Georgia

October 16, 1924

Syllabus by the Court.

The grounds of the motion for a new trial, based upon the contention that there was a variance between the allegata and the probata, do not show error.

The third ground of the amended motion for a new trial is "The verdict is contrary to law and the evidence because no intention was shown to wreck a train." It is insisted that the train was not wrecked, but was derailed by a derailer on the siding, placed there by the railroad for the purpose of derailing trains; and, furthermore, that no intention was shown to wreck the train, because the alleged act of the defendant in throwing the switch was not such an act as in itself would in its nature cause the train to be wrecked, for the reason that when the switch is thrown a red signal appears, which signal can be seen at a sufficiently long distance away to allow the engineer, if he is keeping an outlook, as required by law, to see the same, and thereby bring his train to a stop before reaching the switch. There is no merit in this ground of the motion. It is included in the general grounds complaining that the verdict is without evidence to support it. We hold that the evidence authorized the verdict, and that the court did not err in refusing to grant a new trial.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

London Jackson was convicted of train wrecking, and he brings error. Affirmed.

Russell C.J., dissenting.

W. W Douglas, of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., of Savannah, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

GILBERT J.

London Jackson and Arthur Gland were indicted for the offense of train wrecking, and were tried separately. The exception in this case is to the judgment overruling the motion of London Jackson for a new trial, which consisted of the general grounds and three special grounds. Two of these grounds raise the same point, to wit: Defendant's counsel moved the court to direct a verdict for the defendant, on the ground of variance between the allegata and the probata, in that the indictment charged that "said train being then and there wrecked by the said defendants then and there unlawfully and feloniously breaking the lock on the switch, to wit, South Switch at Long Siding, thereby throwing said switch into neutral (italics ours), causing the train to be derailed, and causing the engine which was then and there drawing and moving said railroad train on the track aforesaid to leave the said railroad track, thereby damaging and wrecking the said engine." The evidence for the state did not show that the switch was thrown into "neutral," as alleged in the indictment, but all the testimony and the physical facts plainly show that the switch was not thrown into neutral, but was open, that is, completely thrown, and the train was not wrecked by the throwing of the switch into neutral but by the throwing of the switch completely open, and the engine ran into the siding and was derailed by the derailer; furthermore, that the evidence does not show that the mere breaking of the lock would thereby throw the switch into neutral, and the testimony for the state being "to get in that siding you have to raise the lever to move the switch. It is locked, and you have to unlock it and raise the lever to move the switch."

The evidence authorized the jury to find that the accused together with Gland, changed the...