Wilson v. State
| Citation | 92 S.E. 309,19 Ga.App. 759 |
| Decision Date | 24 April 1917 |
| Docket Number | 8420. |
| Parties | WILSON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Section 513 of the Penal Code (1910), which provides a penalty for wrecking or attempting to wreck "a railroad train locomotive, car, coach, or vehicle of any kind when used or run on any railroad track for the purpose of travel or transportation," includes cars of a street railroad operated by electric power, as well as cars of a railroad operated by steam power.
On the trial of one charged with the offense of wrecking a street car by the use of dynamite, it was competent to prove the fact of injury to a passenger thereon. The nature and character of the injury was relevant for the purpose of illustrating the character of the explosive used.
Upon the trial of a criminal case, the presiding judge may ask of a witness under examination any proper question in a proper manner. If the question be pertinent but the response disclose irrelevant and immaterial testimony, counsel should move the court to exclude the answer.
A statement of an officer to one accused of crime, to the effect that "it would be better for him to tell the truth about the case," does not necessarily, as a matter of law, render inadmissible as evidence a confession of guilt then made under the circumstances disclosed by the present record. With reference to confession evidence, what the law altogether abhors is the testimonial untrustworthiness of the confession. If the inducement is sufficient by possibility to elicit an untrue confession of guilt, then the confession is to be rejected; otherwise, it is to be admitted under proper instructions from the court.
The evidence was sufficient to warrant the verdict of guilty, and the court did not err in overruling the motion for new trial.
Error from Superior Court, Fulton County; B. H. Hill, Judge.
J. L Wilson was convicted of wrecking a street car by the use of dynamite, and he brings error. Affirmed.
C. P Bentley, Ernest G. Bentley and Frank A. Hooper, all of Atlanta, for plaintiff in error.
John A Boykin, Sol. Gen., and E. A. Stephens, both of Atlanta, for the State.
1. The plaintiff in error was indicted under section 513 of the Penal Code (1910). Omitting formal parts, the indictment is as follows:
"Said accused, in the county of Fulton and state of Georgia, on the 7th day of November, 1916, * * * with force and arms, did, by the device, use, and employment of dynamite, wreck and attempt to wreck a street railroad car and coach of the Georgia Railway & Power Company, a corporation, said car and coach being then and there used and run on and upon the railroad tracks of the said Georgia Railway & Power Company in Fulton county, Ga., for the purpose of travel and transportation."
It is contended that the act of October 12, 1885 (Acts of 1884-85, p. 131), from which section 513 of the Penal Code was taken, does not apply to the dynamiting of a street car, but refers only to such railroads as were used for travel in this state in 1885, and since no electric railroads were then in operation in this state, electric railroads were not in contemplation of the Legislature at the time of the passage of the act. So much of this section of the Code as is relevant to the question here raised is as follows:
"Any person who shall, by any device whatever, wreck, or attempt to wreck, a railroad train, locomotive, car, coach, or vehicle of any kind, when used or run on any railroad track for the purpose of travel or transportation, or assist or advise it to be done, shall be punished with confinement in the penitentiary for life, unless the jury trying the case shall recommend the prisoner to mercy."
The precise question here raised has not been determined by the Court of Appeals or the Supreme Court of this state. Section 522 of the Penal Code (1910) is as follows:
"If any person shall willfully and maliciously destroy, or in any manner injure or obstruct, or shall willfully and maliciously cause, or aid and assist, or counsel or advise any other person to destroy, or in any manner to injure or obstruct, any railroad or branch thereof, or any bridge connected therewith, or any vehicle, edifice, right, or privilege granted by charter, and constructed for use under authority thereof; or if an unauthorized person shall turn, move, or in any manner interfere with any gate, switch, siding, or other appurtenances to any such railroad, he shall be imprisoned in the penitentiary not less than four nor longer than eight years."
By comparison, it will be noted that the section last quoted has direct reference to the track of a railroad company, and by its express terms refers only to railroads; while section 513, under which the plaintiff in error was indicted, refers to the rolling stock used for the purpose of travel or transportation upon the tracks of a railroad company. The statute from which section 522 was taken was enacted in 1837, and in Price v. State, 74 Ga. 378, it was held to apply to a street railroad operated by horse power, though no such species of railroad existed when the act was passed. If that statute applies to a street railroad operated by horse power, although no such railroad was in existence when the act was passed, it would seem to follow that section 513, providing a penalty for wrecking cars operated upon a railroad for the purpose of travel and transportation, applies to cars operated on a street by electricity, whether electric cars were in operation in this state at the time of the passage of the act embodied in this section or not. Moreover, while electricity may not have been in actual use in this state as a motive power for cars on street railroads before the passage of this act, its use for this purpose had been expressly authorized by legislative charter in this state (see acts of December 12 and December 24, 1884-85, pp. 191, 194), and electric street railroads were in operation in other parts of this country. The provisions of the Civil Code respecting the right to recover of a railroad company for negligent injury to, or negligent homicide of, passengers, employés, and other persons, have generally been held to apply to street railways, whether operated by horse power, electric power, or steam power. Savannah, etc., Ry. v. Williams, 117 Ga. 417, 43 S.E. 751, 61 L.R.A. 249, and cases there cited. If, in the act of 1885, the Legislature used language broad enough to include street cars propelled by electricity, and if such cars were within the spirit of the act, the courts have no right to restrict the meaning of that act and say that it does not apply to street cars, whether operated by horse, steam, or electric power. The word "railroad" in the act of 1885 was generic, as it is now, and broad enough to take in the new species as they arise from time to time. Moreover, the Legislature knew, and it must be presumed was satisfied with, the construction placed upon the meaning of the word "railroad" by the Supreme Court of this state, and was willing to re-enact this section in the Codes of 1895 and 1910 in the light of the express or implied definition of the word "railroad" as contained in the section. No sufficient reason occurs to us, nor has any been advanced by able counsel, why the provisions of section 513 do not apply with equal force to a car propelled by electric power and used for the transportation of travelers as to a car propelled by steam power.
2. The trial court allowed a witness for the state, over the objection that the testimony was illegal and irrelevant, to testify as follows:
Porter testified as follows:
The same objection was urged to his evidence.
In Hobbs v. State, 8 Ga.App. 53, 68 S.E. 515, a distinction is made between section 513 and section 522 of the Penal Code, on the ground that section 513 applies to wrecking and attempting to wreck cars, and section 522 to obstructing the track of a railroad company. It has also been held that the intent to wreck a car must be proved, in order to establish an attempt to wreck. See Nowell v. State, 94 Ga 588, 21 S.E. 591. The burden was therefore on the state to show that it was the defendant's intention to wreck the car rather than obstruct the track. The direct result of his act was both relevant and material. Injury to passengers may be regarded as a part of the res gestæ of the wrecking of the car. The evidence of injury to passengers bore directly upon the material questions involved in the case. The defendant, inferentially at least, attempted to show that the car was not wrecked by means of dynamite, as alleged in the indictment. The effect of the explosion upon the car, including the effect upon the passengers riding therein, is of the same relevancy in the case. The character of the injuries may be relevant as illustrating the kind of explosive used, or whether any explosive was used. On this point it would have been more satisfactory if the court had eliminated the evidence with regard to the probable duration of the injuries inflicted upon the passenger Porter, sworn upon the trial of the case. There was no motion to exclude this particular evidence alone. We cannot say, that the evidence admitted in the instant...
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