Lacy v. State

• Decision Date: 06 February 1908
• Citation: 154 Ala. 65,45 So. 680
• Parties: LACY v. STATE.
• Court: Alabama Supreme Court

45 So. 680

154 Ala. 65

LACY v. STATE.

Supreme Court of Alabama

February 6, 1908

Appeal from City Court of Gadsden; Alto V. Lee, Judge.

Thomas Lacy was convicted of wantonly or maliciously throwing a missile calculated to produce death or great bodily harm at or into a passenger car forming a part of the railroad train to wit, a passenger car of the Alabama Great Southern Railroad Company, a corporation. From this conviction, and a sentence to the penitentiary of five years, the defendant appeals. Affirmed.

Demurrers were sustained to the first and second counts, and overruled to the third count, the substance of which is above set out. The demurrers are not set out in the record. The defendant was put to trial upon the third count. The evidence for the state tended to show that, as the Alabama Great Southern train was pulling out from Attalla in the direction of Birmingham, a rock or other missile was thrown, striking the window of the diner attached to the train, shattering the glass; that the rock and glass were picked up together on the platform, where it had fallen from the diner, and was introduced in evidence and identified. It was further shown that the depot and platform were well lighted up, and that no one was seen near the train or visible on the platform; that the rock came from the west end of the depot, and a witness testified that just after the crash was heard he walked to near the west end of the depot, and looked down the platform running along the west end of the depot, and saw two negroes standing there, one with a rock in his hand as if in the act of throwing, and the other standing close by with his mouth close to the ear of the negro who had the rock, and they both were talking; that as soon as they discovered witness they turned and walked off in the dark and were apprehended. Evidence further tended to show that they ate together that night, etc.

The bill of exceptions recites that Mr. Goodhue, of counsel for the state, in his opening argument said, among other things "Our position with reference to this case, gentlemen of the jury, is this: Here were two negro men standing out there on the west end of the platform of the depot. One of them had a rock in his hand, just as if in the act of throwing it. The other one was standing close to him, with his mouth near the ear of the other one, as in close conversation. If, after you have weighed all this evidence, you should reach the conclusion that these negroes were there for the purpose of rocking this train, that they were agreed as to what they were to do, and that one aided, counseled, or abetted and encouraged the other to throw the rock, although he did not actually throw one himself, but the other man under such circumstances threw a rock, then we say it makes no difference which one actually threw the rock. Under such circumstances we would not care a hill of beans. Both would be equally guilty." The bill of exceptions further recites that, when the attorney for the defendant heard Mr Goodhue say he did not care a hill of beans which one threw the rock, he then objected to the whole of the argument. The court asked the attorney for the state what had been said and Mr. Goodhue replied substantially as above, and the court overruled the objection. After the exception of the defendant to the argument of Mr. Goodhue, Mr. Goodhue proceeded, and at some length made plain the contention of the state to the effect that the evidence warranted the conclusion that both negroes were on the platform at the west end of the depot and for the purpose of rocking the train; that the fact that one had a rock, as if about to throw it, and that they were talking to each other when seen, and both walked off together, and neither gave the other away, it being conclusively shown that the rock came from that direction along with all the other evidence in the case, pointed to the fact that they were conspirators. The defendant objected to the entire argument, which objection was overruled.

In its oral charge to the jury the court said: "If the jury should, after considering all the evidence in the case believe beyond a reasonable doubt that the defendant and another man had taken their position on the platform under an agreement or understanding between them...