The appellant was tried and convicted under an indictment which charged him with the burglary of a railroad car with intent to steal.
Applying the rule laid down in the cases of B. R., L P. Co. v. Seaborn, 168 Ala. 658, 53 South, 241, Home Ins. Co. v. Adler, 71 Ala. 527, and Snodgrass v. Caldwell, 90 Ala. 323,7 So. 834, to the testimony of the witness Neal, his evidence should have been excluded, on the objection and motion of the appellant. He testified that he had no independent knowledge that his train was No. 77, nor that L. N. car No. 50448, the car alleged to have been burglarized, was a part of his train; that he only knew it from a record he made. Neither did he testify that the record so made was true and correct. The evidence being in this shape, neither the memorandum nor the testimony of the witness could go before the jury.
This testimony being excluded, there was no evidence in the case as to the burglary of this car; the other witnesses having testified as to a different car. There being no proof, therefore, of the corpus delicti, the confession of the defendant was improperly admitted over the timely objection and exception of the appellant. Ryan v. State, 100 Ala. 94,14 So. 868; Winslow v. State, 76 Ala. 42; Colquitt v. State,61 Ala. 48.
The written charges, that appellant contends were refused to him, cannot be considered, for the reason that they are not signed, or marked "refused," as is required by law. Sharpley v. State (Ala.App.) 93 So. 210;1 Wimberly v. State, 204 Ala. 629,86 So. 900.
For the errors pointed out, the judgement appealed from must be reversed.
Reversed and remanded.
1 Post, p. 620.