Atkins v. State

MARSHALL, C. J.

1. Ordinarily this court will not consider the mere weight of evidence on review of the record of a trial below, yet this case being one where the law requires a higher quality and a greater quantity of evidence than is required in ordinary cases where a verdict is supported by a preponderance of the proof this court will look to the record to ascertain whether or not the rule has been disregarded.

2. In a conviction of murder under section 12402-1 for killing a railroad policeman, the conviction will be sustained though it does not affirmatively appear that the officer was at the time wearing a metallic shield with the. word “Police” and the name of the railroad for which he is appointed inscribed thereon, where it appears that the accused knew that the deceased was in fact a railroad policeman.

_ 3. A railroad policeman who observes parties leaving a train upon which they have been unlawfully riding is authorized to pursue such parties upon private premises and to make an arrest upon such private premises, and resistance on the part of such parties resulting ing in knowingly killing the policeman constitutes murder under said statute.

4. An application to a trial court to permit counsel for the accused to privately interview companions of the accused who are then being held in jail as witnesses for the state awaiting trial of the accused rests in "the sound discretion of the trial court and refusal is not error in the absence of abuse of discretion.

5. Such refusal is not prejudicial when the testimony which it is claimed would have been developed by interviewing the witness was within the knowledge of the accused himself and the additional testimony sought would have been cumulative to testimony adduced.

Judgment affirmed.

Jones, Day, and Kinkade, JJ., concur.