
    (85 Tex. Cr. R. 153)
    CLARK v. STATE.
    (No. 5261.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.
    On Motion for Rehearing, April 2, 1919.)
    1. Criminal Law <§=>1086(14) — Appeal—Record — Motion to Quash Indictment.
    Court’s refusal to quash indictment will not be considered on appeal, where record does not show whether motion to quash indictment was presented to the court.
    2. Criminal Law <§=>1092(8), 1099(7) — Appeal — Bill op Exceptions — Time por Filing.
    Where court adjourned in late August and appellant was given 30 days after adjournment for filing of bill of exceptions and statement of facts, and on September 16th was given an additional 30 days, and on October 11th secured order granting him “30 days additional from and after September 16th,” bill of exceptions and statement of facts filed on November 4th will be considered; the final order, if literally construed, curtailing time granted by previous order.
    3. Criminal Law <§=>1091(1) — Appeal—Bill oe Exceptions.
    A bill of exceptions must be complete in itself, without the necessity of reference to any other part of the record.
    4. Criminal Law <§=>665(2) — Exclusion oe Witnesses — Discretion oe Court.
    The matter of excusing a witness from the rule is one confided to the sound discretion of the trial court.
    5. Criminal - Law <§=>1153(5) — Review—Discretion — Exclusion oe Witness.
    The action of the court in excusing a witness from the rule will not be reviewed on appeal, unless it appears from the bill of exceptions that discretion of the court has been abused.
    6. Criminal Law <§=>1168(2) — Review — Harmless Error.
    Court’s -action in permitting witnesses to remain in courtroom after the rule has been invoked, and permitting them, each in the presence of the other, to testify as to statement by defendant written by one and signed as witness by ’ the other, was harmless, where defendant himself admitted having made the statement.
    7. Criminal Law <§=>412(2) — Evidence — Statements by Accused.
    Evidence- as to statements made by accused when he was not in custody or under restraint or arrest , was properly admitted.
    
      On Motion for Rehearing.
    8. Criminal Law <@=>538(3) — Evidence — Confessions.
    Defendant’s confession of his connection with the crime will justify conviction when the facts making out the substantive crime were shown otherwise.
    9. Criminal Law <@=>534(1) — Evidence — Confession — Sufficiency of Corroboration.
    In prosecution for injuring or damaging railroad track in such manner as to endanger ⅛⅛ lives of any person, in violation of Pen, Code 1911, art. 1229, evidence held sufficient to corroborate defendant’s confession as to his guilty connection 'with the commission of the crime.
    10. Criminal Law <@=>1036(1) — Admission of Evidence — Review—Failure to Object.
    Court on appeal will not consider alleged errors in the admission of evidence, where no objection to the evidence was made in lower court, though appellant is represented by different attorney on appeal.
    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 thé 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 toe 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 Septem-her 16th following the court made an order, giving appellant “30 days additional in which to file statement of facts and hills 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 hills of exception and statement of facts. This last order would seem to make the time expire October 16, 1918, hut 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 same.

Appellant’s bill of exception No. 1 raises the question of the court allowing the sheriff of El Paso county, Mr. Orendorff, and the witness J. B. Dooley, to remain in the courtroom during the trial and after the rule had been invoked, it being set forth in said bill as reasons for such objection that each of said witnessed swore to alleged statements of appellant, for the contents of which reference is made to the statement of facts. It is a well-settled rule of this court that a bill of exceptions must be complete in itself without the necessity of a reference to any other part of the record. Banks v. State, 62 Tex. Cr. R. 552, 138 S. W. 406; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; Harrison v. State, 69 Tex. Cr. R. 291, 153 S. W. 139.

The .matter of excusing a witness from the rule is one confided to the sound discretion of the trial court; and, unless it appears from the bill that such discretion has been abused, the action of the court below will not be revised. In this case appellant himself seems to have admitted making the statement referred to in said bill, and we can see no possible injury resulting, in allowing the sheriff of El Paso county to testify, in the hearing of another witness, that he was called to sign as a witness a written statement, the contents of which he did not know, and in allowing said other witness to testify, in the presence of the sheriff, that he wrote out the statement which the sheriff was called to witness. Clary v. State, 68 Tex. Cr. R. 290, 150 S. W. 919.

There is no merit in appellant’s second bill of exceptions to the court’s action in allowing in evidence the statement, both writ- ■ ten and oral, made by appellant. He was not in custody, nor under restraint or arrest, and it is not so claimed by the appellant. Some of the statements were made to private citizens, and some to officers, but at the time of making them appellant was a witness in another case, and appeared to be lounging around the sheriff’s office and talking very freely. The materiality of the statements is evident on their face.

There appears in the record certain assignments of error, in a separate document, but they only relate to what has already béen discussed herein.

We have gone through this record with the greatest care, and are unable to discover any reversible error, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

This case is before us on appellant’s motion for rehearing.

It is urged therein that the evidence does not establish the corpus delicti. The appellant was charged with wrecking a train under article 1229, P. O. The proof was ample and uncontroverted that there was a wreck of a train at the time alleged in the indictment, and that the same was caused by the removal of fishplates, angle bars, and spikes which held the rails together and fastened them to the cross-ties. The wreck being shown, and that it occurred through the criminal agency of some one, but one question remained to be proven, to wit, appellant’s guilty connection therewith. It is the settled law of this state that the confession of one accused of crime, of his connection therewith, will justify his conviction when the facts making out the substantive crime have been shown otherwise. Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112; White v. State, 40 Tex. Cr. R. 366, 50 S. W. 705; Sullivan v. State, 40 Tex. Cr. R. 633, 51 S. W. 375; Landreth v. State, 44 Tex. Cr. R. 239, 70 S. W. 758. If the rule required that there be corroboration of the confession as to the fact of appellant’s guilty connection with the act shown by other evidence to be criminal, we should still be compelled to hold the evidence sufficient in this case. Willard v. State, 27 Tex. App. 386, 11 S. W. 453, 11 Am. St. Rep. 197; Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Barrett v. State, 55 Tex. Cr. R. 182, 115 S. W. 1187; Harris v. State, 64 Tex. Cr. R. 594, 144 S. W. 232.

This court recognized in its former opinion the fact that the record was before us without motion for new trial, but nevertheless every point in the case was carefully scrutinized and passed upon by. the court. The appellant was represented in the trial court by a different attorney than the one who appeared here for him, and it is now urged that many errors were committed in the admission of evidence to which no objections were made; and counsel now representing the appellant asks this court to reverse this case because of these errors. No cases are cited in the motion, and none are known to the court in which it is held that this is cause for reversal. Wbien one employs an attorney of his own choice, and in an action free from any fraud or taint of unfair dealing loses his case before the court or jury, it has never been held, as far as we know, that thereby the loser gains the right to another trial. None of the matters so complained of appear to the court to materially affect the result of the trial.

No reversible error being pointed out in our former opinion, the motion for rehearing is overruled. 
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