
    No. 136
    No. 19679
    David Atkins v. The State of Ohio.
    Error to the Court of Appeals of Stark County. (On rehearing.)
    480. EVIDENCE — Supreme Court will not ordinarily review on weight of evidence, but in criminal case which requires a greater quality of proof than preponderance, the court will determine whether lower coi|tt disregarded this rule.
    308. CONVICTION — For killing railroad policeman under Sec. 12402 GC. will be sustained although officer did not have badge where accused knew him to be such.
    803. MURDER — Where one rides unlawfully on train, railroad police may pursue same onto private property and to resist officer, resulting in knowingly killing him, constitutes murder under statute.
    1162. TESTIMONY — Refusal to grant interview made to trial court for counsel for accused to see witnesses held in jail which application does not ask permission to interview in front of some one designated by court, is not error when testimony of such witnesses was in knowledge of accused and would be merely cumulative.
    1273. WITNESSES — Counsel can interview companions of accused who by Sec. 1365 GC. are being held in jail as witnesses in presence of sheriff or one designated by court.
   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, General Code, 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 was 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 in knowingly killing the policeman, constitutes murder under said statute.

4. A refusal to grant an application made to a trial court to permit counsel for the accused to interview the companions of the accused who are then being held in jail as witnesses, which application does not request permission to interview the said witnesses in the presence of some one designated by the court, is not prejudicial when the testimony which it is claimed would have been developed by interviewing the witnesses was within the knowledge of the accused himself, and the additional testimony sought would have been cumulative to testimony adduced.

5. Counsel for the accused are entitled to interview companions of the accused who by virtue of Section 13635, General Code, are being held in jail as witnesses, in the presence of the sheriff, or some one designated by the court.

Judgment affirmed.

Day, Allen and Kinkade, JJ., concur. Robinson and Matthias, JJ., dissent._  