Mitchell v. State

• Decision Date: 28 January 1892
• Parties: MITCHELL v. STATE.
• Court: Alabama Supreme Court

10 So. 518

94 Ala. 68

MITCHELL v. STATE.

Supreme Court of Alabama

January 28, 1892

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Indictment against George Mitchell for wantonly and maliciously placing obstructions on a railroad track. Defendant having been convicted, and sentenced to the penitentiary for five years appeals. Affirmed.

There was evidence introduced by the state which tended to show that there had been an attempt to wreck a train on the Louisville & Nashville Railroad at a short distance from Evergreen, in Conecuh county; that the section boss of the road-on coming to the place where the obstruc, tions were placed on the track, found a broken crow-bar and a broken jack-screw, together with other articles of obstructions; and that there was near the scene of the attempted wreck a shovel, which was afterwards found at the defendant's house. On the examination of one Deming, he testified that he was, and had been for some time, depot agent of the Louisville & Nashville road at Evergreen, and that he had a crow-bar at the depot which was used around the warehouse and that he had not seen the crow-bar since the night of the attempted wreck. The witness was then shown the broken crow-bar, and asked if it was the crow-bar he used at the warehouse, to which he replied: "He could not tell positively, and would not like to swear positively to this being the identical bar." After the witness had further testified "that the crow-bar had been around his office and had been used there for a long time, and that he had seen it there often," the court instructed the witness "that it was a question of identity, and that he could determine whether it was the crow-bar or not upon the same principles that he would determine whether his hat or knife was his own." On the question of identity being repeated to the witness, he answered: "I am satisfied that it is the same crow-bar we had at the depot." There was further evidence introduced by the state which tended to connect defendant, together with others, with the commission of the crime for which he was indicted. After proving that the shovel which had been left on the side of the road near the scene of the obstruction was found under the defendant's house after his arrest, the state offered the shovel in evidence, and the court overruled defendant's objection thereto. On the introduction of one Stewart as a witness for the state, after testifying that he was a special agent of the Louisville & Nashville Railroad, and had come up to investigate this obstruction of the track at Evergreen and after he had given further testimony, defendant, on cross-examination, asked him this question: "You have been in court before frequently,-a witness in court frequently,-have you not?" The state objected to the question, and the court sustained the objection, and refused to allow the witness to answer. Upon the introduction of one Dick Agee as a witness for the state, and after he had sworn that, the morning after the train was attempted to be wrecked, he met defendant and one Mack Thomas on the road about one and a half or two hours by sun, in the morning, and both laughed, and said, "Of, fellow, we liked to had something last night," the defendant, on cross-examination, asked said witness "if he was not indicted for the same offense for which the defendant was on trial;" and the witness answered, "Yes." Thereupon the solicitor asked this witness the following question: "I made you no promises, did I?" to which the witness answered, "You made me no promises." The defendant objected to both question and the answer, and duly excepted to the court's overruling his objection. After defendant had testified in his own behalf, the state introduced several witnesses for the purpose of impeaching him, and to each one of these witnesses the following question was propounded by the state: "Do you know the general character of George Mitchell, the defendant, in the neighborhood in which he lives?" Each of said witnesses answered "that he knew the general character of the defendant, and that defendant's character is bad." One witness said he was regarded as a "mean negro." The defendant objected to these questions, and also to the answers. The testimony for defendant tended to prove an alibi.

The defendant requested the court to give the following written charges, and separately excepted to the refusal of the court to give each of them as asked: (4) "The court charges the jury that, in the absence of proof of the exact time when the obstruction was placed on the railroad, you are not authorized from the evidence to fix the exact time only from the evidence in the case; but when there is proof that defendant is seen at a certain place with a crow-bar, and the next morning at a certain place on the railroad, at a certain time, then it is competent for the defendant to prove that he was elsewhere at the times and places; and if the defendant has shown you this by proof, or the evidence in the case shows you, at the times and places named and specified in the evidence, this is a circumstance in the case in favor of the defendant; and if this, with the other evidence in the case creates the abiding conviction in your mind that he has proven this, you must give him the benefit of it; and unless...