Dean v. State

| Ala. | Feb 6, 1908

DOWDELL, J.

This is the second appeal in this case. Dean v. Sia-te, 149 Ala. 34, 43 South. 24. The case was tried by the court below without a jury. There was a special finding of the facts by the court, and judgment rendered thereon. We know of no law authorizing a special finding of facts by the court in the trial of a criminal case, and hence such special finding can exert no influence on this appeal.

There is a bill of exceptions in the record, which purports to set out all of the evidence had on the trial. Under section 14 of an act approved February 28, 1901 (Loc. Acts 1900-01, p. 1862), establishing the city court of Bessemer, the Supreme Court is required on appeal to review judgments and conclusions of the city court o» the evidence without any presumptions in its favor. It clearly appears from the evidence, and we might say the undisputed evidence, that the defendant was conductor of a motor car propelled by electricity and operated as a street railway car from the city of Birmingham to the city of Bessemer, a distance of about 12 or 13 miles, and along the streets of the two cities; that the time occupied in making the run from one city to the other was from 30 to 45 minutes, that sometimes a trailer was attached, and in such case there was a separate conductor for the trailer; that 35 or more runs were made daily in the operation of such cars of said railway.

The defendant was indicted and tried under section 5368 of the Criminal Code. Whether the motor car, with the trailer attached can be termed a train or not, it is quite clear to us that the statute was never intended to apply to conductors as shown by the evidence in this case. See opinion on former appeal. The judgment of the court is reversed, and one will be here rendered discharging defendant.

Reversed and rendered.

Tyson, C. J., and Anderson and McClellan, JJ., concur.