Anderson v. State

• Decision Date: 02 February 1889
• Citation: 11 S.W. 33
• Parties: ANDERSON <I>et al.</I> <I>v.</I> STATE.
• Court: Texas Court of Appeals

11 S.W. 33

ANDERSON et al.

v. STATE.

Court of Appeals of Texas.

February 2, 1889.

Appeal from district court, Polk county; EDWIN HOBBY, Judge.

Alexander Anderson and Joe Woods, convicted of negligent homicide, appeal. The indictment, impleading O. Torgerson, engineer, J. A. De Cogne, fireman, and the appellants, as brakemen, of the Houston, East & West Texas Railway, charged them with negligent homicide in the first degree, alleging substantially that on the 7th day of February, 1887, while engaged as workmen in running said engine and tender on said railroad said Torgerson, De Cogne, Anderson, and Woods did back said engine and tender negligently and carelessly, without ringing the bell or blowing the whistle, and without giving any warning, and without first looking to see if any person was likely to be injured thereby, and by said negligence and carelessness one Sing Morgan was struck by said engine and tender, so run, and the death of said Morgan was caused by said negligence and carelessness, the said Morgan being at the time in a position to be struck by said engine and tender, which fact would have been known by said Torgerson, De Cogne, Anderson, and Woods if they had used that degree of care and caution which a man of ordinary prudence would use under like circumstances, there being then and there an apparent danger of causing the death of said Morgan and of other persons passing on said railroad and highway. Pen. Code Tex. art. 579, provides that "if any person in the performance of a lawful act shall by negligence and carelessness cause the death of another he is guilty of negligent homicide of the first degree." Code Crim. Proc. art. 731, forbids persons charged as principals, accomplices, etc., to testify for each other.

R. S. Lovett, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

This appeal is from a conviction of negligent homicide in the first degree. The indictment charges the appellants and two other persons, jointly, with the commission of the offense. Appellants only were put upon trial, and the punishment assessed was a fine of $250 against each of them. We think the indictment is a good one. It follows the statute defining the offense, and alleges all the elements of the offense, setting forth specifically the acts and omissions of the defendant, alleging that said acts and omissions caused the death of the deceased. Pen. Code, art. 579. It was not error to refuse to permit De Cogne to testify in behalf of the defendants. It was made to appear by the state that said De Cogne was one of the persons jointly charged with defendants with the same homicide, but charged under a different name, the true name of said De Cogne having been mistaken by the grand jury presenting the indictment. Said De Cogne was an incompetent witness in behalf of defendants, he being in fact a principal in the offense, and in reality, but under another name, charged as such in the indictment. Code Crim. Proc. art. 731. As we view the evidence and the law applicable thereto, this conviction is not warranted. These appellants were brakemen. They had no control whatever of said engine and tender. They were riding upon the same for the purpose merely of performing their specific duties as brakemen, which duties had no connection with, or relation to,...