Davis v. State

6 Tex. Ct. App. 166

Opinion

Winkler, J.

This appeal is from a conviction under art. 6532 of Paschal’s Digest, for an alleged violation of the act which requires conductors, and other persons in charge of passenger-trains, to stop at wayside stations. The following is the language of the act which creates the of-fence : “ Any such conductor, or other person in charge of such passenger-train, who shall, upon any occasion, pass any such station without stopping his train as aforesaid, shall be deemed guilty of a misdemeanor.” The offence created by the statute consists in a conductor, or other person in charge of a passenger-train, passing a wayside-station without stopping at such way-side station not less than five minutes.

The indictment under consideration, besides formal averments, and such other allegations as are proper as to the establishment of a way-side station, and having a proper conclusion, charges that the accused “ did then and there wilfully and unlawfully stop a train of passenger-cars less than five minutes at Kingsbury, and that he, the said William Davis, was then and there conductor of said train of passenger-cars.” The gist of the offence is "not in stopping a train less than five minutes, but in passing a way-side station without stopping the length of time required. In this respect the indictment does not properly describe the offence the law intends to punish.

The indictment is defective in another particular, to wit, it does not aver that the defendant was in charge of the train.

The indictment, for these reasons, is defective and insufficient, and does not charge any offence against the law; and, therefore, this judgment must be reversed and the prosecution dismissed.

Reversed and dismissed.