Kirby v. State

• Decision Date: 21 March 1906
• Citation: 93 S.W. 1030
• Parties: KIRBY v. STATE.
• Court: Texas Court of Criminal Appeals

93 S.W. 1030

KIRBY v. STATE.

Court of Criminal Appeals of Texas.

March 21, 1906.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Jess Kirby was convicted of obstructing a railroad track, and he appeals. Reversed.

James H. Lyday and J. W. Donaldson, for appellant. W. H. Hanson, County Atty., and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted for placing an obstruction on the railroad track. Exception was reserved to the charge because it submitted the issue of insanity. There was evidence introduced to show that appellant (a boy of 15 years of age) was of weak mind, and that he was below the average in intellect. We do not believe that the evidence is of that cogency that authorized the court to submit this issue. Griffith v. State, 78 S. W. 347, 9 Tex. Ct. Rep. 1029.

The charge is further criticised, in that it fails to inform the jury that, if they should find from the facts that other parties committed the offense, they should acquit. The witness Wright testified that a few moments before the train ran into the obstruction he noticed three parties pass along the railroad track in the direction where the cross-ties were placed on the track. These were two negroes, and a man the witness took to be a white man, though possibly he may have been a bright mulatto. Outside the confession testified by the officers, the testimony against appellant was of a weak and unsatisfactory character. This confession was obtained in a manner that weakens its force. The officers, having the little negro under arrest, plied him with many questions, all of which were answered to the effect that he was not guilty, and did not place the ties upon the track. They then informed him, without going into details, that he was telling them a falsehood, and narrated certain movements of his during the evening, when appellant remarked that, "You seem to know all about it, and I reckon I did." They told him that would not do, that he knew whether he placed them there or not, and he must tell them the truth. They finally induced him to state that he did. The ties placed on the track were shown to be heavy, made of oak, weighing 150 to 200 pounds. Appellant (a 15 year old boy) seems to be below the average in strength. The testimony further leaves it fairly certain that the ties were picked up from where they were lying off the railroad track and carried and placed on the track. The state's evidence shows in this...