Opinion
No. 13710.
Delivered November 19, 1930.
1. — Bill of Exception — Statement.
In the absence of statement of facts, bills of exception complaining of argument of counsel cannot be appraised.
2. — Injuring Telephone Lines — Procedure.
Appellant was charged with the offense of breaking, pulling down and injuring telephone lines, and the trial court presented that issue in his charge to the jury and appellant was found "guilty" as charged, but as the judgment adjudged appellant to be guilty of the offense of obstructing a telephone line, the judgment will be reformed so as to be in accord with the offense as alleged in the indictment and submitted in the charge of the court.
Appeal from the District Court of Bexar County. Tried below before the Hon. W. S. Anderson, Judge.
Appeal from a conviction of intentionally breaking, pulling down, and injuring telephone wires; penalty, confinement in the penitentiary for two years.
The opinion states the case.
Chas. J. Greenly of San Antonio, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for intentionally breaking, pulling down and injuring telephone wires; punishment, two years in the penitentiary.
We find in the record no statement of facts. Appellant has two bills of exception complaining of the argument of the prosecuting attorney. In the absence of a statement of facts we are unable to appraise the complaint of said argument.
Attention is called to the fact that the judgment adjudged appellant guilty of the offense of "obstructing a telephone line." Art. 1334 of our Penal Code seems to make a distinction between the offense of one who intentionally breaks, cuts, pulls or tears down telegraph or telephone wire, etc., from that of wilfully obstructing or interfering with the transmission of messages along such telegraph or telephone line. Appellant in this case was charged with the offense stated in the beginning of this opinion, and the court in his charge instructed the jury to find him guilty if they found beyond a reasonable doubt that he did wilfully and intentionally break, cut, pull and tear down, etc. The verdict of the jury was that they found appellant guilty as charged. It becomes necessary in this condition of the record for us to reform the judgment and adjudge appellant to be guilty of the offense of intentionally breaking, cutting, pulling and tearing down telephone wires, posts and other machinery necessary to such telephone line, and that he be punished as provided by the verdict of the jury. The sentence will be reformed so as to follow the reformed judgment just above set out. As reformed the judgment will be affirmed.
Affirmed.
HAWKINS, J., absent.