Clark v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Lattimore
• Citation: Clark v. State, 210 S.W. 544, 85 Tex. Cr. R. 153 (Tex. Crim. App. 1919)
• Decision Date: 12 February 1919
• Docket Number: (No. 5261.)
• Parties: CLARK v. STATE.

210 S.W. 544

CLARK v. STATE.

(No. 5261.)

Court of Criminal Appeals of Texas.

February 12, 1919.

On Motion for Rehearing, April 2, 1919.

Appeal from District Court, Taylor County; Joe Burkett, Judge.

W. G. Clark was convicted of injuring or damaging a railroad track in such manner as to endanger the lives of persons in violation of Pen. Code 1911, art. 1229, and he appeals. Affirmed.

Stinson & Chambers, of Abilene, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

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, some one removed various spikes, fishplates, and angle bars from portions of the track of the Wichita Valley Railway Company in Taylor county, Tex., 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 cross-ties, 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 that 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 from 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 $1,000. 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 cannot 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 23d, and an order then entered, giving 30 days after adjournment for filing bills of exception and statement of facts. On September 16th following the court made an order, giving appellant "30 days additional in which to file statement of facts and bills of exception." On October 11th the court made another order, specifically granting 30 days additional 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 30 days' time, and on September 16th made another order granting 30 days' additional time, and on October 11th made another order, which only gives 30 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...