Clark v. State , 85 Tex. Crim. 153 ( 1919 )

Appellant was convicted in the District Court of Taylor County for a violation of the provisions of Article 1229 P.C., which forbids any person in any way injuring or damaging any railroad track in such manner as to endanger the lives of any person, and his punishment was fixed at confinement in the penitentiary for a term of six years.

It appears that on the night of December 13, 1915, someone removed various spikes, fishplates and angle bars from portions of the track of the Wichita Valley Railway Company in Taylor County, Texas, in such manner as to cause a wreck of the passenger train the next morning. These facts are fully testified to by a number of witnesses without contradiction. In a short time after the wreck the sheriff of the county found a fresh buggy track in a field adjacent to the place of the wreck, and trailed same back to Abilene, and testified as to the tracks of the horse apparently pulling the buggy, and described them minutely. It was also shown that appellant owned a buggy and horse, whose tracks were similar to those accompanying the buggy tracks from the scene of the wreck. The section foreman testified that a claw bar, such as was used for pulling spikes out of crossties, was missing from among his tools just before the time of the wreck. Various statements, oral and written of the appellant, were introduced in which he fully stated he was induced by one Felix Jones to assist and accompany him in the matters leading up to and surrounding the removal of the spikes, fishplates and angle bars of the railway track. It is said, among other things, that he went with Jones down to where he got the tools and hauled them out to the place in his buggy, and kept watch for him while he was doing the work, also stating that Jones told him he was going to fix the track so there would be a wreck, and that he was going to be on the train and claim to be hurt, and would sue the company and get a good sum for damages out of which he would give the appellant one thousand dollars. Appellant's testimony was for the purpose of establishing an alibi, and he denied having anything to do with the wreck, but claimed that he had been trying to get in with Jones, and wanted to assist in catching Jones. It was in evidence that Jones was a notoriously bad man who had been tried and convicted for murder. It was also in proof that Jones was on the train the next morning after the removal of the parts of the railroad track. and was in the wreck and claimed to have been hurt, and sued the railway company for damages, but failed to recover.

Appellant has filed no motion for a new trial, but we have as fully considered the statement of facts and other matters contained in the record as if such motion had been on file.

A motion was filed to quash the indictment, but owing to the fact that the record is silent as to whether same was ever presented to the court we can not consider same.

No exceptions were taken to the charge of the court, and the only two special charges which were asked by appellant having been given, and there being no motion for a new trial raising any objections to the charge, we presume the same sufficiently presented the law of the case, and observe no error therein.

A motion in arrest of judgment was made questioning the constitutionality and validity of the statute under which the prosecution was had. No specific objection is pointed out, and we think the motion was properly overruled.

There appears some confusion in the various orders of the trial court extending the time for filing bills of exception and statement of facts, one construction of which would make it appear same were filed too late for consideration. The record does not show when the trial court adjourned, but the trial ended August 21st, and the motion in arrest of judgment was overruled August 23rd, and an order then entered giving thirty days after adjournment for filing bills of exception and statement of facts. On September 16th following the court made an order giving appellant "thirty days additional in which to file statement of facts and bills of exception." On October 11th the court made another order specifically granting thirty days addition from and after September 16, 1918, within which to file bills of exception and statement of facts. This last order would seem to make the time expire October 16, 1918, but we cannot understand why the need for three orders extending such time for filing. It is clear if the court adjourned in late August, giving thirty days time, and on September 16th made another order granting thirty days additional time, and on October 11th made another order which only gives thirty days from September 16th, this last order would be a curtailment of the time granted by the order of September 16th. In this condition, and the bills of exception and statement of facts being filed on November 4th, we have considered same.

Appellant's bill of exception No. 1 raises the question of the court allowing the sheriff of El Paso county, Mr. Orendorff, and the witness J.B. Dooley, to remain in the courtroom during the trial and after the rule had been invoked, it being set forth in said bill as reasons for such objection that each of said witnesses swore to alleged statements of appellant, for the contents of which reference is made to the statement of facts. It is a well settled rule of this court that a bill of exceptions must be complete in itself without the necessity of a reference to any other part of the record. Banks v. State, 62 Tex. Crim. 552; Campbell v. State, 63 Tex.Crim. Rep., 141 S.W. Rep., 232; Harrison v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 139.

The matter of excusing a witness from the rule is one confided to the sound discretion of the trial court, and unless it appears from the bill that such discretion has been abused, the action of the court below will not be revised. In this case appellant himself seems to have admitted making the statement referred to in said bill, and we can see no possible injury resulting in allowing the sheriff of El Paso county to testify in the hearing of another witness, that he was called to sign as a witness a written statement, the contents of which he did not know, and in allowing said other witness to testify in the presence of the sheriff, that he wrote out the statement which the sheriff was called to witness. Clary v. State, 68 Tex.Crim. Rep., 150 S.W. Rep., 919.

There is no merit in appellant's second bill of exceptions to the court's action in allowing in evidence the statement, both written and oral, made by appellant. He was not in custody, nor under restraint or arrest, and it is not so claimed by the appellant. Some of the statements were made to private citizens, and some to officers, but at the time of making them appellant was a witness in another case, and appeared to be lounging around the sheriff's office and talking very freely. The materiality of the statements is evident on their face.

There appears in the record certain assignments of error, in a separate document, but they only relate to what has already been discussed herein.

We have gone through this record with the greatest care and are unable to discover any reversible error, and the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. April 2, 1919.