The State moves for rehearing herein, and accompanies this motion by a supplemental transcript duly certified which contains and sets out an information which was filed in the trial court and duly presented at the time of trial. The case was reversed solely for failure of the record to contain an information or to show that there was one on file. The motion of the State is granted.
It may not do any good, but this court may be compelled by the carelessness of those who prepare transcripts, and the failure of those interested in having correct transcripts prepared, — to see that same contain all the record before they are sent to this court, to make rules restricting the rights and privileges of those who are interested and who permit records to come before us in the condition this record came. As it originally appeared here, it contained a bond for appeal made during the trial term, which necessitated the dismissal of the appeal. We called attention in our opinion of dismissal to the failure of the record to contain an information. Notwithstanding the plain letter of the law, requiring an appeal bond for appeal after the expiration of the trial term, a recognizance was entered into by appellant after we dismissed the appeal. When the matter was presented to us on motion to reinstate we were compelled to decline to grant the request because of the inattention to the terms of the law on the part of the officials in the trial court, or those interested in the appeal. The motion to re-instate was denied, but leave granted to correct the record by the filing of an appeal bond. Another motion to re-instate accompanied by proper appeal bond was made, and the appeal re-instated, but no information appearing, the judgment was reversed for this lack. Now, after all this trouble and delay, it appears that an information was in the hands of the clerk of the trial court all the time, and it is included in the record. Such conduct greatly multiplies the work and burdens on this court.
There are two bills of exception. The first complains of the refusal of a special charge seeking to have the jury told that they *Page 556 could not find the defendant guilty unless they believed beyond a reasonable doubt that he himself and no one else threw three dynamite sticks into the Neches river on the date charged. Such an instruction would have been contrary to the law of principals, and was properly refused. The other bill of exception complains of the refusal of a new trial. No complaint of misconduct of the jury, or newly discovered evidence, or other matter outside the routine of the regular trial, is set up in the motion. The bill of exception as qualified shows no error.
There is complaint in the brief of the insufficiency of the testimony. Dewey Clark testified for the State that he, this appellant and Jim Casper were fishing on the Neches river, a fresh water stream of this State, about the 19th of August, 1928; that they began fishing about 9:30 A.M. and fished with a hook and line until about 3:00 P.M., at which time they agreed among themselves that they would go to Jacksonville, buy some dynamite, come back and try to catch fish with it. He testified they went to Berl Pinkard's store where this appellant bought five sticks of dynamite, witness seeing him when he paid for it; that they then came back to the river and parked their car near the end of a bridge where appellant got the dynamite out of the car, and the three went down the river about a mile and a half until they came to a hole of water that looked "fishy" where they decided they would shoot the dynamite. Appellant told witness to go out from the river and watch for them. Witness did so, going out two or three hundred yards and standing there watching. While he was watching he heard four loud explosions, waited a little while, and then went back to the hole of water where he had left appellant and Casper, and found them there with two fish, which they carried to the camp and ate for supper. No other witness testified to any criminative fact whatever. Dewey Clark was an accomplice, but under the provisions of Art. 978 of the Penal Code a conviction can be had for a violation of the offense here charged upon the uncorroborated testimony of an accomplice.
The trial court charged on circumstantial evidence, and there seems no escape from the proposition that the testimony overwhelmingly showed that appellant did take two fish from a fresh water stream in this State by the use of dynamite at or about the time charged.
The State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.
Affirmed. *Page 557