# Reynolds v. State

> Court of Criminal Appeals of Texas · January 16, 1918 · 82 Tex. Crim. 505

URL: https://www.frixlaw.com/law-library/cases/3946582

## Case

- **Full name:** A. J. Reynolds v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 16, 1918
- **Citations:** 82 Tex. Crim. 505; 199 S.W. 1092; 1918 Tex. Crim. App. LEXIS 12
- **Precedential status:** Published
- **Opinion:** Addendum by Prendergast
- **Judges:** Prendergast
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3946582

## Opinion text

ON REHEARING.
June 20, 1917.
PRENDERGAST, Judge.
Appellant in his second or third effort in the lower court to correct his record has shown that he entered into the proper recognizance prescribed by the statute, and also filed in this court a properly certified copy thereof and also a correct copy in another matter which the original record did not show. His motion to reinstate is, therefore, granted, the order of dismissal heretofore entered set aside and the cause now decided on its merits.
In the original motion of the Assistant Attorney General to dismiss
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this appeal because of insufficient recognizance he also called attention to the fact that there was no order by the lower court permitting the statement of facts and bills to be filed after term time and that all of appellant’s purported bills and statement of facts were filed long after adjournment, and moved that they be struck out and not considered.
In view of the fact that in at least the two efforts by appellant to get the record below amended to show that he had entered into the proper recognizance, nothing appears whereby he attempted to show that any order permitting him to file the bills and statement of facts after term time, was entered, it is evident that no such order was made; but even if it was, as it was not entered and does not appear in this record the Assistant Attorney General’s motion to strike out and not consider the bills and statement of facts must be sustained under the uniform and many decisions of this court.
Therefore the only question which can be reviewed is the sufficiency of the indictment. The indictment was in two counts. The second charged an unlawful riot. As the jury found the appellant guilty only of unlawful assembly and thereby acquitted him of the offense of riot, all questions pertaining to the riot charge passed out of the case.
The first count charging unlawful assembly is as follows: It has the usual formal allegations, and then alleges, that on or about August 11, 1916, in El Paso County, Texas, “one A. J. Reynolds did then and there unlawfully assemble and meet together with C. E. Smith, J. W. Cole and E. L. Ligón, and divers other persons whose names are to the assistant county attorney unknown, with the intent and purpose to aid each other by threats, intimidation, pulling off of trolleys, turning loose and overturning of street cars, throwing of missies, towit: stones, and by violence, towit: rudely displaying pistols, to illegally prevent and deprive Albert Kuehme and H. E. Brown, and each of them, of his and their right and the right of each of them to labor, and to disturb him and them and each of them in the enjoyment of said right, that is, said Kuehme and Brown were each and both then and there engaged in a lawful employment, towit: pursuing the labor, occupation and employment of motorman and' conductor, respectively, being lawfully employed as such, on a street ear then and there owned by the El Paso Electric Railway Company, a corporation, and the purpose of said unlawful assembly and the intent of said A. J. Reynolds, C. E. Smith, J.
~W.
Cole and E. L. Ligón, and divers other persons whose names are to the assistant county attorney unknown, was then and there to prevent the said Kuehme and Brown, and each of them from pursuing their and his respective labors, occupations and employment and to intimidate him and them from following his and their daily avocation and to interfere by the means aforesaid, with his and their labor and employment as motorman and conductor, the same being the usual and ordinary occupation and employment of said Kuehme and Brown, respectively.”
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Appellant’s grounds for quashing this were: (1) that it does not charge an offense against the law committed by him; (2) the allegation in charging “the said Kuehme and Brown were each and both then and there engaged in a lawful employment, towit: pursuing the labor, occupation and employment of motorman and conductor” is insufficient in that it does not aver that they were lawfully pursuing the labor, etc., of conductor and motorman. The reverse of this is true as shown by the count above copied. It there specifically alleges that they were pursuing the labor, etc., “of motorman and conductor, respectively”; (3) that this count attempted to charge two separate and distinct offenses: first, the unlawful assemply with reference to Kuehme, and, second, such assembly with reference to Brown. There is nothing in appellant’s contention on this point. The count in this particular was really in his favor and against the State in that it charged unlawful assembly against both Kuehme and Brown. Either alone would have been sufficient. But by joining both of them it imposed a greater burden on the State than was necessary. However, the offense charged is only one offense and not two, for all the allegations show that everything that was done by appellant in order to make him guilty of the offense was done at the same time, at the same place, by the same persons, and against both Kuehme. and Brown. So that it was hut one offense though committed against two persons. If the acts had been charged to have been committed against one alone and he had been tried on that it would have put him in jeopardy a second time to have tried him on the same allegation against the other party for the’ reasons stated above; (4) because the allegations show him, if guilty of anything, not of unlawful assembly, but of actual violence.
The information herein complies substantially with the forms laid down by Mr. Branch, Judge White and Judge Wilson, and are strictly in accordance with the statute prescribing the offense. (P. C., arts. 435 and 445.) The court’s action in overruling appellant’s motion to quash was correct.
The judgment is affirmed.
Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3946582. Public record. Not legal advice.