
    BYRNE v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1910.)
    Railroads (§ 255) — Operation — Offenses Incident to Opebation.
    One who had acted as freight conductor for a number of years in another state could not be. convicted under Acts 1st and 2d Called Sessions 31st Deg. c. 46, § 2; making one acting as conductor on a train, without having two years prior thereto worked in the capacity of brakeman or freight conductor guilty of a misdemeanor; the statute not requiring one to have worked as a conductor, etc., for two years within this state.
    [Ed. Note. — For other eases, see Railroads, Dec. Dig. § 255. ]
    Appeal from Gregg County Court; J. H. McHaney, Judge.
    J. T. Byrne was convicted of acting as a railroad conductor in violation of law, and he appeals.
    Reversed and remanded.
    J. W. Terry and A. H. Culwell, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of violating an act .of the Legislature by acting as a' conductor on a railroad train, the same being a freight train on the road of the Texas & Gulf Railway Company, without having for two years prior thereto served or worked in the capacity of a brakeman or conductor on a freight train on a line of railroad, etc.

The law under which appellant was indicted is found on page 92 of the Acts of the First and Second Called Sessions of the Thirty-First Legislature, in section 2. This section of the act reads as follows: “If any person shall act or engage to act as conductor on a railroad train in this state without having for two years prior thereto served or worked in the capacity of brakeman or conductor on a freight train on a line of railroad he shall be deemed guilty of a misdemeanor, and shall be punished by fine of not less than twenty-five nor more than five hundred dollars, and each day he so engages shall constitute a separate offense.’’

Lovick, testifying for the state, states he knew the appellant, and that he had not within two years to his knowledge acted as conductor on a freight train in Texas. It will be noted that the act does not require that the party acting as conductor shall serve two years as freight conductor within the state of Texas before he can engage in acting as conductor. The evidence is uneon-troverted that appellant had acted as conductor for quite a number of years in the state of Missouri, and that he had been continually in the railroad service since 1881, several years of which he was employed as conductor on freight trains.

We find that the evidence is totally insufficient to sustain the conviction. There are some legal questions involved in the case which we deem unnecessary to discuss, in view of the fact that the state has not made a case. Appellant has demonstrated by his testimony that he was not within the purview of the statute.

The judgment is reversed, and the cause is remanded.  