On original submission we declined to consider the statement of facts and some bills of exception *Page 507 which could not be appraised without knowledge of the facts. It is now made to appear by proper affidavit that on account of appellant not being able to pay for the statement of facts his attorney prepared one and submitted it to the attorney representing the state within the ninety days from the date of overruling motion for new trial. On the same day it was so submitted appellant's attorney was notified by the District Attorney that he could not agree to it, and on the same day it was delivered to the trial judge who prepared the statement of facts found in the record and filed it within forty days after he received the appellant's statement of facts. Subdivision 4 of Art. 760, C. C. P., provides as follows:
"When the duty devolves upon the court to prepare the statement of facts, he shall have such time in which to do so as he deems necessary, not to exceed forty days after he receives the defendant's statement of facts."
By the showing made appellant seems to bring himself within the purview of the statute quoted. It follows that the statement of facts and bills of exception incident thereto should be considered.
The questions disposed of in our original opinion are believed to have been correctly decided and will not be again reviewed.
It was alleged in the indictment that appellant interfered with and displaced a switch on "the track of a railroad * * to-wit, the track of the Texas Pacific Railroad." It is recited in a bill of exception that the witness Stephens testified that the corporate name of the railroad was the "Texas Pacific Railway Company," whereupon objection was made to said witness or any other witness testifying as to a wreck on the track of the latter company, as being at variance with the allegations in the indictment. The bill is defective in that it does not set out any further evidence given by Stephens or any other witness. The rule invoked by appellant seems to apply where theft is charged and it becomes necessary to prove want of consent. White v. State, 24 Tex.Crim. App. 231,5 S.W. 857; Thurmond v. State, 30 Tex.Crim. Rep., 17 S.W. 1098. (See also Note 10, Vernon's C. C. P., Vol. 1, p. 273.) That is not required in the present case. The allegation in the indictment was only the designation of the railroad track where the switch was located. The distinction is pointed out in Clay v. State, 65 Tex.Crim. Rep., 146 S.W. 166, where accused was charged with placing obstructions on the railroad track. *Page 508
In bill No. 4 appears complaint at the admission in evidence of appellant's confession because it was not the original confession and was not read over to appellant before he signed it. This bill is incomplete in omitting to have incorporated in it the confession introduced. Dement v. State, 39 Tex. Crim. 271,45 S.W. 917; Stroube v. State, 40 Tex. Crim. 581,51 S.W. 357. However, we note that in qualifying the bill the court says the instrument introduced was a carbon copy of the original, which was read to appellant before he signed it. It appears that both the original and the copy were signed by appellant and properly witnessed. The only difference is that in the warning on the original it is recited that appellant was charged with "murder," which last word was inadvertently omitted in the warning as it appears in the copy introduced. The original was lost and could not be found. If the written confession has been lost it may be proved by parol upon laying a proper predicate. Pierce v. State, 54 Tex.Crim. Rep.,113 S.W. 148; Roberts v. State, 67 Tex.Crim. Rep.,150 S.W. 627. We see no error in the court's ruling in the matter.
Complaint is brought forward by bill of exception No. 5 because of the admission of the confession, based upon the objection that it was not voluntary. This bill is defective in the same particular as is the preceding one in having failed to include therein the confession. Appellant's evidence given on the trial, if true, showed conduct on the part of the officers and those acting with them which would have rendered the confession inadmissible, but appellant's testimony in this regard was contradicted by every witness present when the confession was taken, and the issue of fact thus made was submitted for the jury's determination in an admirable charge on the subject.
In the written confession of appellant was a statement that he had twisted the switch lock off with a bridge spike, and had hidden the lock and spike under the head-block of the switch stand. We gather from the evidence that the lock could not be found at the place indicated. Some months after appellant's arrest and while he was in jail officer Horton testified over objection that appellant told him that he (appellant) had twisted the lock off the switch stand and had thrown it over against a brush pile west of the switch stand; Horton went to the scene of the wreck and found a Texas Pacific switch lock near the place where appellant said he threw it. The objections urged were, first, that it was not shown to have *Page 509 been the lock which was missed from the switch on the night of the wreck; and, second, that it was not an instrument with which a crime had been committed, nor the fruits of a crime. The first ground of objection went, we think, more to the weight than to the admissibility of the evidence. As said by the court in qualifying the bill, the finding of the lock as a result of information given by appellant was a strong circumstance that the lock found was the one twisted from the switch stand the night of the wreck. The other ground of objection is, we think, based upon a misconception of the statute. Art. 727 provides that although a party may be under arrest if he "makes statements of fact or circumstances that are found to be true, which conduce to establish his guilt, such as finding of secreted or stolen property, or the instrument with which he states the offense was committed * * * such statements are admissible against him. That part of the statute which refers to the finding of secreted or stolen property or the instrument with which an offense was committed is only illustrative of the evidence which is to be received under such circumstances.
Upon the trial appellant denied any connection with wrecking the train, and claimed that the confession which had been introduced in evidence against him did not speak the truth, was not voluntarily made, but that he was coerced to make it. He testified that the sheriff and other parties came to the jail where he was confined, whipped him severely, told him that a mob was coming for him, and that the sheriff struck him with a pistol, and because of this he did tell them he would say he wrecked the train; that he was then taken before the County Attorney where he made his confession. When the sheriff was called by the state he denied every charge made by appellant upon which was based the claim that the confession was not voluntary — as did every other witness present — and the sheriff while giving his version of the matters occurring in the jail at the very time appellant claims he was coerced, testified that appellant then told them voluntarily that "he wrecked the train by twisting off the switch lock and 'cocking' the switch enough to wreck the train." To the recital by the sheriff of what appellant said while in jail objection was urged. While the ground of objection is not stated in the bill it was apparently based upon the fact that appellant was confined in jail at the time. Appellant himself had opened up an investigation of what transpired in the jail in so far as it related to whether or not he had been coerced. It may be the sheriff was permitted *Page 510 to go too far in his evidence, but under the peculiar facts of the case we are of opinion a reversal should not result. In the written confession are found identically the same statements; appellant made substantially the same statements to the officers as to where he had thrown the switch lock and as a result of which it was there found; it was elicited from the sheriff on cross-examination by appellant himself that several days after the written confession was made appellant, while in jail, told his mother and father that he wrecked the train; while appellant was testifying on direct examination his own counsel elicited from him the fact that he had made this admission to his father and mother. Appellant undertook to explain the admission by claiming that the officers had advised him to so tell them. Under these circumstances we would not be justified in ordering a reversal because of the matter complained of.
The other bills relating to the introduction and exclusion of evidence and the refusal of certain special charges have been examined. They are thought not to manifest error.
The motion for rehearing is overruled.
Overruled.