159 Ga. 133 | Ga. | 1924
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 switch on the track of the railroad named in the indictment from the position in which they found it; and that this act of the two defendants caused the engine to be diverted from its intended track, with the result that it was derailed and wrecked. Should the verdict be set aside on the
In principle we think that the present case falls within the ruling made in the Hall case, and therefore that the first and second
The second headnote does not require elaboration. ,
Judgment affirmed.