Barton v. State

Willson, Judge.

It is charged in the indictment that the defendnt did wilfully place an obstruction, to-wit, a large piece of timber and rocks, upon the track of a railroad there situated, to-wit, the track of the Galveston, Harrisburg & San Antonio Railroad, whereby the lives of persons were endangered.”

We think the indictment is sufficient. It was not necessary to specify therein the persons whose lives were endangered. It follows the language of the statute defining the offense. Penal Code, art. 678.

Upon the trial, over objections made by defendant, the State was permitted to prove another obstruction in addition to the one charged in the indictment, which other obstruction was made on the same night and very soon after the first one, but at a point on the railroad some three-fourths of a mile distant from the place of the first obstruction. It was proved that the defendant assisted in placing both obstructions upon the track.

There was no error in admitting the testimony as to the second obstruction. Although the second obstruction constituted a separate and distinet transaction from that charged in the indictment, still the two offenses were committed contemporaneously, and the commission of the second was admissible for the purpose of showing the motive or intent with which the first was committed, and also for the purpose of developing the res gestee of the first offense. Willson’s Crim. Stats., secs. 2496, 1295.

But whilst said testimony was admissible, it devolved upon the court to instruct the jury as to the purpose for which it was admitted, and to restrict their consideration of it to that purpose only. This the court failed to do, and the defendant reserved a bill of exception to the charge because of such omission. Even if an exception had not been reserved to the charge, the omission specified is fundamental error, and leaves this court with no discretion as to the disposition to be made of the case. Willson’s Crim. Stats., secs. 2344, 2363; Reno v. The State, 25 Texas Ct. App., 102; Gentry v. The State, Id., 614; Rogers v. The State, 26 Texas Ct. App., 404.

The judgment is reversed and the cause is remanded, because of said error of omission in the charge.

Reversed and remanded.

Judges all present and concurring.