
    CLAY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 20, 1912.
    Rehearing Denied April 17, 1912.)
    1. Railroads (§ 255) — Obstruction of Track — Indictment.
    An indictment for willfully obstructing the track of a designated railroad, whereby the lives of persons are endangered, need not allege that such railroad company was legally incorporated.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 773-788; Dec. Dig. § 255.]
    2. Criminal Law (§ 472) — Opinion Evidence-Expert Testimony — Operation of Railroads.
    In the trial of an indictment for willfully obstructing a railroad track, a railroad engineer of experience and knowledge may testify as an expert as to whether the obstructions placed on the track were calculated to wreck a train running at the usual rate of speed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. § 472.]
    3. Railroads (§ 255)— Offenses — Obstruction of Track.
    Under the statute making it an offense to willfully obstruct a railroad track, it is immaterial whether the railroad company is a legal corporation or not.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 773-788; Dec. Dig. § 255.]
    4. Criminal Law (§ 800*) — Instructions— Defining Terms.
    In a prosecution for the statutory offense of placing an obstruction upon a railroad track, it is not necessary that the court by instruction define what is meant by obstruction, as that term is defined by the statute itself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1S08-1S10, 1812; Dec. Dig. § 800.]
    5. Criminal Law (§ 778) — Obstruction of Track — Instructions—Burden of Proof.
    In a prosecution for obstructing a railroad track, a charge that, if there was a reasonable doubt as to whether the defendant was on the ground where the offense was committed at the time of its commission,. defendant should be acquitted, was not objectionable as placing upon the defendant the burden of proving an alibi.
    [Ed. Note. — For other cases, see Criminal •Law, Cent. Dig. §§ 1846-1857, 1960, 1967; Dec. Dig. § 778.]
    6. Criminal Law (§ 792*) — Instructions— Principals.
    Evidence in a prosecution for willfully obstructing a railroad track, showing that defendant and another passed along where the obstruction was placed on the track and were seen about there, calls for a charge on principals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. § 792.]
    7. Criminal Law (§ 1172) — Harmless Error — Instructions — Conformity to Evidence.
    Where the evidence in a prosecution for •obstructing a railroad track showed that ties had been placed on the track, and defendant’s evidence showed that rocks also had been placed there, an instruction submitting obstructions by ties or rocks was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3154-3163, 3169; Dec. Dig. § 1172.]
    Appeal from District Court, Grimes County; S. W. Dean, Judge.
    Henry Clay was convicted of willfully obstructing a railroad track, and he appeals.
    Affirmed.
    H. L. Lewis, of Navasota, and W. W. Meachum, of Anderson, for appellant. C. . E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, tried, and convicted of the offense of willfully and maliciously placing an obstruction upon the track of the Houston & Texas Central Railroad Company, whereby the lives of persons were endangered, and his punishment assessed at two years in the penitentiary.

Appellant filed motions to quash the indictment and in arrest of judgment on the ground that the indictment does not allege that the Houston & Texas Central Railroad Company is incorporated, claiming that such allegation must be contained in the indictment, and that the railroad company must be a legal corporation. 1-Ie cites us to the case of Thurmond v. State, 30 Tex. App. 546, 17 S. W. 1098, in which case it is held that, where the property of a corporation is stolen, the indictment must not only describe the corporation by its direct corporate name, but must also allege that it was a corporation, and that the property was taken from the possession of some one holding the same for the corporation without the consent of the party holding same, etc. This was based on the fact that it is necessary to prove want of consent in theft eases of the owner, or of the party holding the property in order to justify a conviction, and, the owner being a corporation, it could not testify, but must testify through its agents. In this character of case no such proof is necessary. The offense in this case is the placing of an obstruction upon the track of a railroad, whereby the life of any person might be endangered, and it would be immaterial whether the owner was a private individual, corporation, or joint-stock company. The railroad company could not give consent for such an obstruction to be placed on the track, and it would be no defense to allege and prove such consent, but would only render the owner liable as a principal, if it connived and consented to such an offense being committed. The allegation that an obstruction had been placed on the track of a railroad company whereby the lives of persons were endangered, to wit, the track of the Houston & Texas Central Railroad Company, was but a designation of the railroad track on which the obstruction was placed, and it was unnecessary to allege whether it was owned by an individual, partnership or corporation.

In bills of exceptions, it is objected to the witness W. J. Wilson being permitted to testify: “I am a locomotive engineer in the employ of the Houston & Texas Central Railroad Company. I have been an engineer for nearly 22 years. I have been with that road all the time. On the date alleged in the indictment I was running an engine on that road. I did not see any other obstruction there besides the ties. If we had been running at 35 miles an hour, the usual speed of the train, the ties were calculated to wreck the train. The ties would have been calculated to wreck a train running at the usual rate of speed.” The objections urged were that there were no allegations that the Houston & Texas Central Railroad Company was an incorporated company. This has heretofore been discussed. The other objections present no error, for by the testimony it is shown that he is an engineer of more than 21 years’ experience, and under such circumstances he was qualified to testify as an expert. The average man would not know what obstructions were calculated to endanger the lives of the persons traveling on trains traversing the tracks of a road, and it was permissible to permit a person of experience and knowledge to testify whether or not the obstructions placed on the track were such.

Bill of exceptions No. 4 presents no error. In it it is stated that the court failed to charge all the law applicable to and demanded by the evidence, in that the charge does not define what would be a legal railroad company, nor define what is meant by obstruction as used in the statute. It would be immaterial whether the company was a legal corporation or not, if it was operating a railroad in Texas, and the term “obstruction” is defined by the statute as being süch an obstruction as the lives of persons might be endangered. The court’s charge fully covers this phase of the case.

The appellant objected to the.court’s charge on alibi on the ground that said charge places the burden on the defendant to prove said alibi. This objection is not supported by the charge, in that the charge instructs the jury if they have a reasonable doubt as to whether the defendant was on the ground, where the alleged offense was committed at the time of commission of the same, they must acquit him.

The charge on principals aptly and correctly applies the law as applicable to the evidence in this case, and the objection that the facts in evidence did not warrant such a charge is not well taken. This is a case of circumstantial evidence,, and the evidence shows that defendant and another passed along where the obstruction was placed on the track, were seen in close proximity thereto, and a pencil was ■ found with the name “Henry C.” at this point; defendant having been shown to have kept a scorecard the day before. The facts called for a charge on principals, and as there is no objection to the charge, except that the law of principals should not have been presented, this presents no error.

The objection that the charge was incorrect, in that it submitted obstructions by ties or rocks, because the evidence did not show that any rocks had been placed on the track, is not well taken. The evidence shows that ties had been placed thereon, and the appellant developed the fact that rocks had been placed on- the track which the witness did not think would derail a train. This would not present a reversible error.

This disposes of all the bills of exceptions in the record, and the only other ground in the motion is based on the alleged insufficiency of the evidence. We have carefully reviewed the evidence. It is a case based wholly on circumstantial evidence, and we think the facts and circumstances in evidence would authorize the jury to arrive at the conclusion at which they did arrive.

The judgment is affirmed.  