
    19026.
    McNAIR v. THE STATE.
    Decided July 10, 1928.
    
      
      B. J. Stevens, for plaintiff in error.
    ‘ George Hams, solicitor-general, J. B. & T. B. Burnside, John M. Graham, contra.
   Luke, J.

McNair was convicted of attempting to wreck a passenger-train. The case is here for review upon the assignments of error that the evidence did not authorize the verdict, and upon the special grounds that the court, over objection, permitted a witness to remain in the court-room to assist the prosecution in the trial of the case, and upon certain rulings of the court in admitting in evidence, over objection, both a written and an oral confession by the defendant that he placed a cross-tie on' the railroad-track with no intention of hurting any one or of wrecking the train, but just to have the fun of seeing the train knock the ties off the track.

The court did not err in permitting one of the State’s witnesses to remain in the court-room to assist in the prosecution of the case. This was discretionary with the court, and there is nothing in the record to show an abuse of discretion. The confession was not illegally admitted, for any reason pointed out in the record. Those to whom the alleged confession was made testified positively that the confession was freely and voluntarily made. The foundation was, as is required, properly laid. The subsequent statement of the defendant contradicting the making of the confession freely, etc., was no reason for excluding the alleged confession. The jury was properly instructed by the court with respect to the law as to confessions. The defendant has had a legal trial, and his case was presented fully by his able counsel in the trial court and here. For no reason disclosed by the record did the court err in overruling the motion for a new trial.

Judgment affirmed.

Broyles, G. J., and Bloodworth, J., concur.  