source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J.

license: Public Domain

text:
    MASON v. STATE.
    (No. 3134.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Dissenting Opinion, June 19, 1914.)
    1. Criminal Law (§ 590) — Trial—Continuance — Discretion oe Court.
    Under Code Cr. Proc. 1911, art. 557, permitting a case to be called for trial two days after the defendant has been served with a copy of the indictment, and article 558, providing that a counsel appointed for the defendant shall be granted one day in which to prepare for trial, the refusal of the court to grant a continuance in a case set for trial 18 days after a copy of the indictment was served, 12 days after an attorney had been appointed by the court to represent the defendant, and 7 days after another attorney had been employed by the defendant in the case, was not an abuse of the court’s discretion, where it is not shown that the defendant was deprived of any testimony of any witnesses, or that he had subsequently ascertained any additional facts that would have been beneficial to him.
    [Ed. Note. — Eor other cases, Law, Cent. Dig. §§ 1316, 1317; 590.] see Criminal Dec. Dig. §
    2. Criminal Law (§ 264) — Arraignment-Absence oe Defendant’s Counsel.
    Where defendant’s counsel was granted 10 minutes to confer with witnesses, and could not be found at the expiration of 25 minutes, whereupon the court proceeded to arraign the defendant, who was present, and whose counsel returned during the reading of the indictment and entered a plea of not guilty, the absence oi counsel did not render the arraignment erroneous.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 615, 618; Dec. Dig. § 264.]
    3. Criminal Law (§ 649) — Conduct oe Trial — Adjournment.
    Where a homicide case went to trial Tuesday and the prosecution rested Saturday at noon, the refusal of the court to postpone the case to give defendant’s counsel time to consult witnesses from that time until Monday morning because of the expense of the witnesses in attendance, was not erroneous, where the court granted each request of defendant’s counsel for time to confer with witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1512 — 1515; Dec. Dig. § 649.]
    4. Criminal Law (§ 656) — Conduct oe Trial — Remarks by Judge — Comment on Evidence.
    A remark by the trial judge in overruling an objection to a certain question, that it was a part of the res gestse, is not a comment upon the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]

      6. Homicide (§ 174) — Admissibility of Ev- ■ idence — Subsequent Conduct of Defendant.
    In a prosecution for homicide, testimony by a witness that the defendant stated to him the evening after the homicide, and before his arrest, that he had not been in the city where the homicide occurred, and that while _ he was talking defendant was nervous and excited and had a haggard appearance, which was unusual for him, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. § 174.]
    6.. Homicide (§ 173) — Admissibility of Evidence-Proceedings Before Grand Jury.
    Where an indictment for homicide charged that deceased was killed with some sharp instrument to the grand jury unknown, it was not error for the district attorney to testify as to the efforts of the grand jury to ascertain the character of instrument used.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 374; Dec. Dig. § 173.]
    7. Criminal Law (§ 1170) — Appeal—Harmless Error —Exclusion of Evidence — Cure by ¡Subsequent Admission of Facts.
    Where the trial court excluded testimony offered by defendant but later changed his ruling after the witness had gone home, and the prosecuting attorney admitted the facts which defendant offered to prove by that witness, the defendant was not thereby prejudiced.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    8. Witnesses (§ 329) —Impeachment — Insanity.
    The state may, to impeach the credibility of a witness for the defense, establish by cross-examination that the witness had been adjudged insane, and that said judgment had never been set aside.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1104, 1105; Dec. Dig. § 329.]
    9. Criminal Law (§ 721) — Argument of Prosecuting Attorney — Comment on Failure of Accused to -Testify.
    Where accused did not testify in his own behalf, but introduced testimony tending to show that between two certain hours on the evening of the homicide he was not at the place where it was committed, comment by the state’s attorney that the testimony did not show where accused was prior to those two hours was not erroneous as a comment on defendant’s failure to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    10. Criminal Law (§ 789) — Instructions— Necessity — Application of Reasonable Doubt.
    Where the court applied the doctrine of reasonable doubt to the whole case and gave an approved charge on circumstantial evidence, it was not necessary to apply the law of reasonable doubt to each fact in the chain of circumstances.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 190-LA922, 1960, 1967; Dec. Dig. § 789.]
    11. Criminal Law (§ 1111) — Appeal—Bill of Exceptions — Qualification by Court —Effect.
    One convicted of crime, who accepts a bill of exceptions as qualified by the trial court, is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. § 1111.]
    12. Criminal Law (§ 699) — Conduct of Trial — Counsel for Accused.
    A bill of exceptions complaining of the action of the court in refusing to permit defendant’s attorney to state reasons for objection to testimony and upon his insisting, ordering him to sit down and thereafter ordering the sheriff to set him down, presents no error, where the bill shows that the same objections had been made to the testimony of other witnesses for reasons then stated, and the court qualified the bill by adding that the counsel gave him considerable trouble and would not stop talking when commanded to do so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig. § 699.]
    13. Criminal Law (§ 957) — New Trial-Misconduct of Jurors.
    Where a motion for a new itrial was supported by an affidavit of certain jurors that the jury commented on the defendant’s failure to testify, but nine other jurors made affidavit that the only mention was a statement by one juror, after the reading of the instructions, that they could not consider the failure to testify, the motion for new trial was properly overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. § 957.]1
    14. Criminal Law (§ 413) — Admissibility of Evidence — Declarations of Accused — Exculpatory Statements.
    Statements made by a defendant, charged with homicide, subsequent to the commission of the offense, that he was not in the city where the homicide was committed, are admissible on behalf of the state in a prosecution, where defendant’s witnesses testified that he was in the city where the homicide was committed, but at a different place in that city, since exculpatory statements are not confessions and need not be shown to have been voluntarily made.
    LBd. Note. — For other cases, see Criminal Law, Cent.' Dig. §§ 928-935; Dec. Dig. § 413.]
    Davidson, J., dissenting.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Eugene Mason was convicted of murder, and he appeals.
    Affirmed.
    J. S. Crumpton and O. B. Pirkey, both of New Boston, for appellant. L. E. Keeney, Dist. Atty., of Mt. Pleasant, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      Foi other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at confinement in the penitentiary for life.

In the first bill of exceptions it is complained that the court erred in overruling appellant’s application for a continuance. It is shown by the bill that the attendance of all witnesses for whom process had been issued was secured, but appellant’s attorneys make an equitable application to. the court on the ground that they had not had time to make proper investigation and preparation for the trial. The offense is alleged to have been committed on the 2d of December, 1913, and appellant was arrested the next day. In a day or two thereafter he conferred with his present attorney, and employed him in the case, conditioned upon a certain amount of money being paid in cash. Appellant’s two brothers agreed to pay this money, but failed to do so. The indictment was returned into court on the 16th day of December, and on that day the court conferred with the attorney whom appellant had sought to employ and whom he did afterwards employ, in regard to the setting of the case, and the case was set for December 29th. The employment not being consummated, the court on the 17th day of December appointed an attorney to represent appellant, Mr. O. B. Pirkey. This was 12 days before the case was called for trial. On the 22d of December the employment of Mr. Crumpton was consummated, and that day process was issued for appellant’s witnesses, and all those issued for attended court.

Our Code permits a case to be called for trial 2 days after a defendant has been served with a copy of the indictment (article 557, C. C. P.), and, where counsel is appointed, the Code provides that such counsel shall be granted one day in which to prepare for trial (article 558). This case was not called for -trial until 13 days after appellant was. served with a copy of the indictment, and 12 days after Mr. Pirkey had been appointed by the court to represent him, and 7 days after Mr. Crumpton had been employed in the case. This seems to have given him ample time as contemplated by our laws, and the “court was not guilty of undue haste,” as contended by appellant. In the application it is only stated that appellant “hoped to be able to develop other facts” without stating what such facts were or would be, and in the motion for a new trial it is not attempted to be shown that he was deprived of any testimony, or the testimony of any witness, or that he had ascertained any other or additional facts that would be in the least beneficial to him. Under such circumstances, we must hold that the court did not abuse the discretion confided to him by law.

The next contention is that the court erred in having appellant arraigned during the absence of counsel. The facts would show that after the jury had been selected and impaneled, before proceeding further, appellant’s counsel requested a 10 minutes’ recess that he might confer with some witnesses. This was granted by the court. Instead of taking only 10 minutes, the trial judge states he waited 25 minutes, and, being unable to find counsel, he ordered the district attorney to arraign the appellant, and he did so; appellant’s counsel coming in the courtroom while the indictment was being read to the jury, and arriving in time to enter a plea of “not guilty.” We know of no provision of the Code which requires that counsel shall be present at all stages of the proceedings in a criminal case. It does so provide as to the defendant (article 557), but it only states that counsel shall also be called. In this case the court states he had the officers try to find counsel and they failed to do so. While the law provides that in a felony case the appellant shall be present at all stages of the proceedings, yet it has been held since the law was passed allowing a defendant to remain on bond, if he willfully or intentionally absents himself while some proceeding takes place, it will not present reversible error, unless the record discloses he may have suffered injury thereby. As before stated, the defendant was present, and as appellant’s counsel had overstayed more than twice the length of time they had been granted by the court, and the officers of the court had failed to locate them, the fact that appellant was “arraigned” while they were not in the courtroom, but no further action taken, in the absence of any injury shown, presents no error. Appellant cites us to no case from this state sustaining his contention, but refers us to the case of Kansas v. Moore, 61 Kan. 732, 60 Pac. 748. In that case it is shown that, under the laws of Kansas, pleas to quash, etc., must be filed before arraignment". In this state there is no such provision, and while the Kansas case holds the right to have counsel present at the arraignment to be a fundamental right, yet we do not think it so under our Constitution and laws. It is true that our Constitution guarantees one the right to be represented by counsel in a capital case, and if by the arraignment he had been deprived of any right, or the right to file any plea, or he could in the remotest sense have been injured in his rights by being arraigned while his counsel was not in the courtroom, we would hold it error; but nothing of that character appears in this case.

It appears that this case went to trial on Tuesday, and state’s counsel rested its case Saturday at noon. Counsel moved a recess of court until Monday morning. That was denied, and the court took a recess only until 1:30 p. m. Appellant complains of this action of the court, saying he had not time to converse with his witnesses. The court in approving the bill states:

“I never at any time refused to permit defendant’s counsel to confer with any or all the witnesses. This case was delayed time and again to permit counsel to talk to witnesses. I declined to postpone this case from Saturday noon to Monday because there was in attendance a great number of witnesses from Cass county, at great expense to the state, besides counsel had a week in which to confer with the witnesses, at noon hours, also after adjourning hour. With this explanation this bill is approved and ordered filed.”

As thus qualified, the bill presents no error.

It appears that, while Mrs. Nellie Poarcher was testifying, she was asked by counsel for the state, “About what time did you find and ascertain that he had been killed and robbed up there?” Appellant objected to the question. In overruling the objection, the court stated, “I think that is a part of the res gestas.” While it is always better for the court to rule without making any additional remarks, yet it is only where-such comment is upon the weight of the testimony that such action presents error. In this case •the remark cannot be construed into informing the jury as to what weight to give the testimony. The answer to the question is not presented in the bill, nor the testimony adduced, and we could not therefore judge whether or not it would have been hurtful if it had been upon the weight of the testimony.

In bill of exceptions No. 6 it is complained that Ross Powell was permitted to testify, and then, without reciting the testimony, says “see statement of facts, page 77.” The bill should have contained the testimony objected to. If we turn to the statement of facts, we could not by reading page 77 get the connection of that page of the testimony with his entire testimony, for the testimony of this witness covers a number of pages. But if we read his entire testimony, we learn that Mr. Powell had a conversation with defendant the evening after the homicide, and before defendant’s arrest, and in that conversation he denied going to Texarkana, and claimed to have gotten off the train beyond where it left the yard at Springdale; that he told appellant that he, the witness, understood that he had gone to Texarkana with deceased, but appellant denied that he had done so; that, while he was talking with appellant, appellant was ■nervous and excited; that he had a haggard appearance, and looked to have lost sleep; that he had known appellant for years, and he had never seen him in this condition before. In the light of the testimony in this case, and all the testimony of this witness, this testimony was clearly admissible, for it made manifest that appellant was made aware that he was under suspicion, and his acts and conduct when not under arrest and when no officer was present would certainly be admissible in a case depending on circumstantial evidence.

The bill of indictment in this case alleges that deceased was killed by being cut and stabbed with some sharp instrument to the grand jury unknown. The district attorney testified as to the efforts made by the grand jury in trying to ascertain the character and kind of instrument used. In this there was no error.

It is made to appear that, while Lige Roberts was testifying, appellant desired to prove by him that he (appellant) on the day he went to Texarkana with deceased invited and insisted on Roberts going to Texarkana with him. The court excluded this testimony at the time it was first offered, but later changed his ruling and told counsel he would admit the testimony. Mr. Roberts having gone home, state’s counsel admitted as a fact that appellant on that occasion did insist on Roberts going with him. As this testimony was admitted to go to the jury as a proven fact, the bill presents no error.

J. A. Bramlett was a witness for the defendant, and on cross-examination the state was permitted to elicit from this witness that some 18 months prior to this trial he (Bramlett) had been adjudged insane, and that said judgment had never been set aside. This was admissible on the credit to be given the testimony of the witness. In law, under such circumstances, he would be insane at the time of this trial, unless it should be affirmatively shown that he had regained his mental faculties, and, if insane, certainly his testimony would be entitled to but little credit.

Appellant did not take the stand as a witness to testify in his behalf, but he did introduce testimony as to his whereabouts after 9 o’clock that night in Texarkana, and one of the main contentions of appellant is that taking the time that deceased is shown to have been killed, at the place where he was killed, and for him to have been with Charles Ellum at the Union Depot in Texarkana from 9 o’clock to 10 o’clock, rendered it impossible for him to have been at the scene of the homicide; that the depot ■ was two miles away from the place of the homicide, and, taking into consideration the time he was killed until 9 o’clock; he could hardly have gotten to the Union Depot by 9 o’clock. Under such circumstances, it was not improper for state’s counsel to commefit on the fact that it was not shown by the testimony where appellant was from the time the train arrived in Texarkana until 9 o’clock. To refer to the fact that the testimony did not disclose the whereabouts of defendant during that time was not a comment on defendant’s failure to testify, for during those hours he was certainly in the town of Texarkana, and he could have called some witness as to his whereabouts if he did not object to it being known. Pie certainly knew where he was, of course, and could have testified to that fact; but he also knew who he was with, and from the fact he had called no one to testify in regard thereto was a legitimate matter of comment.

The court’s charge on circumstantial evidence has been frequently approved by this court, and is not subject to the criticisms contained in appellant’s objections to the charge. Moseley v. State, 59 Tex. Cr. R. 90, 127 S. W. 178; Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1129; Trevino v. State, 38 Tex. Cr. R. 6, 41 S. W. 608; Boggs v. State, 38 Tex. Cr. R. 82, 41 S. W. 642; Baldez v. State, 37 Tex. Cr. R. 413, 35 S. W. 664; Bell v. State, 71 S. W. 24. And having given the charge he did, it was not necessary to give the special charges requested on this issue, nor was it necessary to apply the law of reasonable doubt to each fact in the chain of circumstances, when the court applied the doctrine of reasonable doubt to the whole case, and gave- an approved charge on circumstantial evidence.

The other criticisms of the court’s charge present no error, and the special charges in so far as they are the law of this case were fully covered by the court’s main charge.

It appears, during the trial of the case and while Mr. "Watlington was on the witness stand, the state desired to prove some statements made by appellant, and defendant was objecting thereto. The court overruled the objection, when appellant’s counsel insisted on stating the reasons why he thought the testimony was inadmissible. The bill shows that the same objections had been made to the testimony of three other witnesses and reasons then stated, and the court would not permit counsel to again state his reasons. Upon counsel insisting, the court ordered him to sit down, and, counsel not doing so, the court ordered the sheriff to set him down. In approving the bill the court states:

“I had considerable trouble with the attorney in this case. When I would rule on a question, he would continue to talk and I could not get him to stop; I was compelled to call on the sheriff to seat counsel. Counsel was very disrespectful to the court.”

Appellant accepts this bill as thus qualified, and he is bound by the qualification. Under it the bill presents no error.

Appellant attached to his motion for á new trial the affidavits of some of the jurors stating that:

“After the jury had retired and was considering their verdict, some one o'f the jurors mentioned the fact of the failure of the defendant to testify.”

The state contests this ground of the motion, and attaches the affidavit of the foreman and eight of the other jurymen to the •contest. The foreman testifies that while he was reading that portion of the charge of the court instructing them: “A defendant in a criminal case may or may not testify in his own behalf just as he pleases. If he fails to testify such failure shall not be taken as a circumstance against him, neither shall such failure to testify be discussed or commented on during the trial. It shall not be even alluded to. The defendant has not testified in this case. This is his privilege and right, and, when you retire to consider your verdict in this case, you will not discuss, comment on, or even allude to such failure to testify. It shall not be considered by you at all for any purpose whatever, but you shall wholly ignore such failure to testify” — one of the jurymen said, “The defendant did not testify in this case, but we must not consider it at all,” and that this was all that was said. The other eight jurymen sustain him. The judgment shows that the court heard evidence on this ground in the motion, but the evidence is not before us except in so far as shown by these affidavits. Under such circumstances, we can but hold the court did not err in the premises.

These are all the questions presented by the record except one, which is presented in six different bills of exception. On all the questions hereinbefore discussed the entire court agree; but on the question hereinafter discussed Judge DAVIDSON does not agree to the disposition made thereof, but thinks it presents such error as should cause a reversal of the case, while the writer of the opinion and Presiding Judge PRENDER-GAST think the testimony was admissible, and the bills present no error.

By these bills it is shown that appellant was arrested at his home the night after the homicide, and that, shortly after his arrest, to some six different persons he stated that while he did get on the train with Mr. Thag-gard, the deceased, at Springdale, he got off the train at Alamo and walked back home; that he did not go to Texarkana that night. This in substance is the testimony he objected to each of the witnesses testifying to. In approving one of the bills, the court says:

“Examined, approved, and ordered filed as a part of the record in this case with the following explanation: This testimony was allowed to go before the jury over the defendant’s objection, on January 2, 1914, but later, on the 5th of January, same .was withdrawn from the jury, and the court in his charge to the jury asked that they not consider said testimony. This statement of the defendant was exculpatory, because, if defendant got off the train at Alamo as he stated, he could not have been in Texarkana at the time the murder was committed. This evidence was admissible under the decisions of our Court of Criminal Appeals decided in the case of Whorton v. State, in 152 S. W. 1082. A number of the witnesses testified to the same statement made by the defendant when he was not under arrest as appears in the record.”

The court was correct in holding that the evidence was admissible under the rule of law as announced in the Whorton Case, supra, and the only error he committed was in excluding the testimony and instructing the jury not to consider it. But this was error in favor of the defendant and against the state, and the only way he complains of this action is that the court erred in originally admitting the testimony, and such error was not cured by withdrawing the testimony. Had the testimony been inadmissible, as this fact was proven by a number of witnesses who talked with defendant about the matter prior to his arrest, when the court withdrew that portion of the testimony which showed the same statement to have been made after his arrest, it would not present reversible error. It is, however, useless to cite the authorities on that question, as we hold the testimony admissible, being exculpatory in its nature, and showing a state of facts which if true would render it impossible for appellant to have committed the offense, and therefore such statement could not by any stretch of the imagination be construed to be a confession of guilt. In Whorton’s Case we discussed the distinction between exculpatory statements and inculpatory statements, or confessions* and frankly admitted that the authorities in this state were in conflict, and we then carefully considered those cases now cited by appellant, and overruled them; bilt, that no mistake may hereafter be made, we here and now expressly overrule each of the cases, holding that exculpatory statements come within the same rule as confessions of a defendant. In 'addition to the authorities in Whorton v. State, 152 S. W. 1082, we have had our attention called to Wigmore’s Work on Evidence, § 821, vol. 1. That learned writer says:

“What is a confession? Denials, guilty conduct, and self-contradictions, distinguished. A confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. It is to this class of statements only that the present principle of exclusion applies. In this sense, therefore, there are in particular three things which fall without the meaning of the term ‘confession,’ and are thus not affected in any way by the present rules, namely, (1) guilty conduct, (2) exculpatory statements, and (3) acknowledgments of subordinate facts colorless with reference to actual guilt.
“(1) The conduct of an accused person falls clearly without the present principle, which rests on the theory that the trustworthiness of the accused’s assertions -is destroyed or weakened by circumstances supplying a motive for false assertion (post, sec. 822). That which is not an assertion, in some form or another, can therefore not be within the scope of such a principle; its probative use is not testimonial but circumstantial; and the frequency of its employment, free from the present rules, may be seen by perusing the numerous rules of circumstantial evidence (ante, secs. 272-284) which apply to such evidence. The accused’s conduct, therefore, consisting in fleeing from arrest, concealing the traces of crime, fabricating evidence, suppressing testimony, and other behavior indicative of a guilty consciousness, falls without the present rules.
“(2) Exculpatory statements, denying guilt, cannot be confessions. This ought to be plain enough, if legal terms are to have any meaning and if the spirit of the general principle is to be obeyed. This necessary meaning for the term ‘confession’ is generally conceded.”

In commenting on this rule of law, Mr. Wigmore says:

“The authorities dealing with this class of evidence sufficiently show that it is admitted without regard to the confess;on rules. In the courts of Tekas alone, it would seem, the heresy prevails that conduct may be treated as a confession.”

Again he says:

“In Texas, the sound doctrine, originally accepted, seems to have been ignored later” — citing Ferguson v. State, 31 Tex. Cr. R. 91.

The Ferguson Case was cited and followed in Davis v. State, 24 S. W. 651, and by examining our reports it will be found that the rule of law announced in the Ferguson Case was followed from the organization of our courts until the rendition of some later opinions, when the court undertook to give to the term “confession” as used in our Code a meaning never theretofore attributed to tbe word, and which now has not the sanction of any text-writer so far as we have been able to ascertain. As supporting the rule of law as announced by Mr. Wigmore, and that the doctrine in the Bailey Case, 40 Tex. Cr. R. 150, 49 S. W. 102, is a “heresy” as said by that eminent law-writer, he cites cases from almost every state in the Union, and gives a history of the rule showing much research and learning. Pentecost v. State, 107 Ala. 81, 18 South. 146; People v. Ammerman, 118 Cal. 23, 50 Pac. 15; Mora v. People, 19 Colo. 255, 35 Pac. 179; 1810, Swift, Evidence (Conn.) 133; Powell v. State, 101 Ga. 9, 29 S. E. 309, 65 Am. St. Rep. 277; State v. Spillers, 105 La. 163, 29 South. 480; Taylor v. State, 37 Neb. 788, 56 N. W. 623; State v. McDowell, 129 N. C. 523, 39 S. E. 840; State v. Vaigneur, 5 Rich. (S. C.) 400; Goodwin v. State, 114 Wis. 318, 90 N. W. 170; Michaels v. People, 208 Ill. 603, 70 N. E. 747; State v. Campbell, 73 Kan. 688, 85 Pac. 784, 9 D. R. A. (N. S.) 533, 9 Ann. Cas. 1203; State v. Thomas, 135 Iowa, 717, 109 N. W. 900; State v. Royce, 38 Wash. 111, 80 Pac. 268, 3 Ann. Cas. 351. We could continue these citations from this and other works indefinitely; hut, in addition to the authorities herein cited and cited in the Whorton Case, supra, we will only quote the following short excerpts from Mr. Wigmore’s work:

“1846, Ruffin, C. J., in State v. Broughton,. 29 N. C. 101, 45 Am. Dec. 507: ‘It is altogether a mistake to call this “evidence of a confession by a prisoner.” It has nothing of that character-. It was not an admission of his own guilt, but, on the contrary, an accusation of another person. That it was preferred on oath in no way detracts from the inference that may be drawn from it unfavorably to the prisoner, as being a false accusation against another, and thus furnishing, with other things, an argument of his own guilt.’
“1S62, Rice, J., in State v. Gilman, 51 Me. 225: ‘The declarations of accused persons are not necessarily confessions, 'but generally, on the other hand, they are denials of guilt, and consist in attempts to explain circumstances* calculated to excite suspicion.’
“1895, De Witt, J., in State v. Cadotte, 17 Mont. 315, 42 Pac. 857 (the accused took the stand to explain how in self-defense he killed the deceased; the state offered various previous explanations of his, showing self-contradictions): ‘The other objection was that a portion of this testimony was a confession by the defendant, and it was not shown that such confession was made freely. * * * We are satisfied that the statements of the defendant sought to be proved were not confessions at all. Instead of being confessions of guilt, they were statements of his self-defense, statements in which he admitted the killing, and endeavored to show that he was obliged to kill to save his own life. They were admissions, to be sure, of the killing, but self-defending statements as to the same. And this was precisely the position he occupied upon the trial. He relying on self-defense for acquittal, it was competent to attack his credibility by proving statements made out of court as to the self-defense, contrary to those which he made as a witness on the trial.’
“1899, Granger, J., in State v. Novak, 109 Iowa, 717, 79 N. W. 465: ‘Inaccurate use of such words as “confessions,” “admissions,” and “declarations,” has led to some confusion in the cases; but, on authority and reason, there is a clear distinction between a confession and an admission or declaration, unless the admission or declaration has within it the scope and purpose of a confession, in which its distinctive feature, as an admission or declaration, is lost is the broader term “confession.” A confession is a voluntary admission of declaration by a person of Ms agency or participation in a crime. * * * To make an admission or declaration a confession, it must in some way be an acknowledgment of guilt. * * * The manifest purpose of (the defendant’s) statements was to show himself innocent, and, if his statements are true, he is innocent of the crime charged; so that by no possibility could he have been induced. because of the promise of secrecy, to relate what was untrue, to his prejudice.’ ’

The effort made in some of the cases in this court to give to the term “confession,” as used in the statute, a definition and meaning to include all character of statements, is, in our opinion, unwarranted, against the great weight of authority, and as said in the ÍWhorton Case, supra, we adhere to the rule announced in the case of Ferguson v. State, 31 Tex. Cr. R. 93, 19 S. W. 901, which Mr. Wigmore says is the sound doctrine, and that in Texas alone is the “heresy” announced in the Bailey Case, 40 Tex. Cr. R. 150, 49 S. W. 102, given any recognition, and that case and those following it, as hereinbefore stated, are overruled.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). I cannot agree to the affirmance. The state’s theory was that deceased was killed a mile and a half or two miles from where appellant introduced evidence to show he was at the time of the homicide. The witnesses he introduced place him at such time and place as that if true he could not have been the party who committed the homicide, but this evidence placed him in the city of Texarkana about ¡the distance above mentioned from the place of the homicide. The substance of this evidence was to the effect that he was in Texarkana on the night of the homicide, but was so situated that he could not have committed it. In other words, he proved an alibi, but yet placed himself in the city of Texarkana. He was arrested the next day or within a day or so after the homicide. While under arrest the state was permitted to prove, by parties having him under such arrest, statements that he (appellant) made to these officers. These statements were, in a sense, exculpatory; that is, the statements were to the effect that he was not in Texarkana on the night of the homicide, but was at a different place or dif-erent places some miles from the city. Of course, this evidence was introduced by the state to meet and disprove the evidence introduced on the trial by him to show his presence in the city of Texarkana, but absent from the homicide. My Brethren, sustaining the ruling of the trial court admitting this testimony, place it purely and simply upon the proposition that it was exculpatory and therefore beneficial to him. The state did not so regard it and did not introduce it for that purpose, but to show that the testimony given on the trial was false. Taken in that sense, it is to be treated as a confession, or at least inculpatory testimony, and, being under arrest, under all the authorities it was not intraducibie either as original or impeach-j ing testimony. The question of impeachment, I of course, is not in this case, as defendant j did not take the witness stand. The rule is ¡ well settled in Texas that the unwarned statements of the defendant while under arrest cannot be used against him for any purpose. See Branches Crim. Law, § 234, for collation of authorities;. Ware v. State, 36 Tex. Cr. R. 599, 38 S. W. 198; Morales v. State, 36 Tex. Cr. R. 243, 36 S. W. 435, 846; Brown v. State, 55 Tex. Cr. R. 581, 118 S. W. 139; Bailey v. State, 40 Tex. Cr. R. 150, 49 S. W. 102, and quite a number of other cases cited by Mr. Branch.

The rule is as well stated perhaps as can be, and as tersely, by Mr. Branch in his work on Criminal Law in section 218 of that work. He uses this language:

“The statute relating to confessions is not confined strictly to a technical confession, but covers any act in the nature of a confession, statement, or circumstance done or made by the defendant while in confinement or custody and not having been ■ properly warned, which may be used by the state as a criminative fact against him.”

There can be no question that his statement that he was out of the city of Texar-kana on the night of the homicide and at a different place some miles away was used by the state as a criminative fact. It was introduced for no other purpose by the state, and it could have no other effect. It was a direct attack upon his testimony introduced showing his presence in the city of Texar-kana, but absence from the homicide. The writer does not understand how this testimony could be intraducibie. It was crimina-tive and as used critically so, and evidently the jury so regarded it, as did the court. In Hernan v. State, 42 Tex. Cr. R. 465, 60 S. W. 766, appellant set up the defense that he was in another part of Texas when the alleged burglary occurred. This court held it was error to permit the state to prove that after his arrest he told the officer he was in Arkansas when the burglary occurred. In Bailey v. State, 40 Tex. Cr. R. 150, 49 S. W. 102, this court held it was error to permit the state to prove that after the arrest of the accused he said he knew nothing about the difficulty. In Wright v. State, 36 Tex. Cr. R. 432, 37 S. W. 732, which was a manslaughter case, the defendant’s defense was to the effect that deceased had a knife. It was held error on the trial to permit the state to introduce the unwarned statement that the deceased had a pistol. In Williams v. State, 10 Tex. App. 526, in a horse theft case, it was held error to permit exculpatory statements as to where the defendant got the horse. This exculpatory statement was in contradiction of the defense on the trial. In Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. 301, being a cattle theft case, it was held error to-permit exculpatory statements; the defendant having adopted another defense on the trial. See, also, Parker v. State, 57 S. W. 668. These are a sufficient number of cases to show the general line of decisions. These decisions, of course, refer to matters like that included in the bills of exception in this case. So far as the writer has observed or noticed, the cases with the rule announced in this dissent has been the rule in Texas until the Whorton Case cited by my Brethren and written by Judge Harper. I do not care to elaborate this matter. The Whorton Case and the opinion of the majority in this case will have the effect to overrule all the decisions heretofore rendered in Texas on this question. They are clearly in error. This judgment ought to have been reversed under all the authorites, unless it be the Whorton Case.

For these reasons I respectfully enter my dissent.


author: PRENDERGAST, P. J.

text:
    ARNOLD v. STATE.
    (No. 3042.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. Arson (§ 18) — Indictment—Accomplice.
    Under Pen. Code 1911, art. 1200, defining arson as the willful burning- of any house, and article 1207, providing that the owner of a house may destroy it by fire without incurring the penalty of arson, except in cases mentioned in article 1208, among which exceptions is when a house is insured, an indictment charging accused with procuring another to burn his house, which was insured, need not allege that the person who set fire to the house knew that it was insured.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 30-32, .34-37; Dec. Dig. § 18.

    For other definitions, see Words and Phrases, vol. 1, pp. 507-509; vol. 8, p. 7582.]
    2. Arson (§ 18) — Indictment—Accomplice.
    Nor was it necessary to allege by whom or by what authority the house. .was insured; an allegation in the language of the statute that it was insured being sufficient. ■
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 30-32, 34-37; Dec. Dig. § 18.*]
    3. Arson (§ 25) — Prosecution—Issues—Accomplice.
    Under Pen. Code 1911, art. 1208, making one who burns his own house, which is insured, guilty of arson, it is not necessary that the property was burned with intent to defraud the insurance company, and therefore the state need not prove that the insurance policy was valid or was issued by a company authorized to do business within the state.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 52-54; Dee. Dig. § 25.]
    4. Arson (§ 25) — Prosecution—Issues—Accomplice.
    Where an indictment, charging the defendant with procuring another to burn his insured house, alleged that the other maliciously set fire to the house, and that the defendant paid the other a certain sum of money in another county, the state need not prove the malice, or the payment of the exact sum, or that the payment was in the named county, which allegations were not necessary to constitute the offense, since the rule that, when a person, place, or thing necessary to be alleged in an indictment is particularly described, it must be proved as described does not apply to allegations, which are mere surplusage.
    LEd. Note. — For other cases, see Arson, Cent. Dig. §§ 52-54; Dec. Dig. § 25.]
    5. Criminal Law (§ 351) — Evidence — Flight — Forfeiture of Bail. .
    Where defendant had been previously indicted for the same offense in another county under & defective indictment, and had there forfeited his bail, the indictment and the order forfeiting the bond are admissible to show flight.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.]
    6. Criminal Law (§ 1091) — Appeal—Bills op Exceptions — Sufficiency — Admission of Evidence.
    . Where defendant was charged with procuring another to burn his insured house, bills of. exceptions complaining of the admission in evidence of the insurance company’s policy and its assignment to defendant, over objections that it had not been shown that the insurer had authority to issue the policy or that it was properly executed by an authorized agent, which bills did not contain a statement of the facts which rendered the instruments inadmissible, are not sufficient; the statement of objections made not being a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§• 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    7. Arson (§ 31) — Evidence — Insurance Policy — Foundation.
    Evidence that the defendant was an agent of the insurer and procured the issuance of the policy to the one who subsequently assigned it to him, that he took the policy to the company’s agent and had it transferred by the agent to himself after the assignment, that practically as part of the same transaction he hired another to burn the property in order that he might collect the insurance, and thereafter attempted to collect the amount of the policy and accepted a part thereof in settlement, was sufficient foundation to justify the admission of the policy and assignment in evidence.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 65-68; Dec. Dig. § 31.]
    8. Criminal Law (§ 507) — Evidence—Testimony of Accomplice.
    Where defendant was charged with procuring another to hura his building, a .brother of the one who set the fire, who was a material witness for the prosecution, and whose only connection with the prosecution was that after his brother’s arrest he aided in procuring an at-torfley and induced defendant to pay the attorney’s fees as part of the amount he agreed to pay for starting the fire, was not an accomplice of the defendant, whose testimony must be corroborated to sustain a conviction under Pen. Code 1911, art. 87.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§> 1082-1096; Dec. Dig. § 507.]
    9. Criminal Law (§ 1166]4) —Appeal — Harmless Error — Error Favorable to Accused.
    Error in submitting to the jury the question whether the brother was an accomplice was favorable and not prejudicial to the accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § II6614.]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    D. S. Arnold was convicted as an accomplice to arson, and he appeals.
    Affirmed.

      Mahaffey, Thomas & Hughes, of Texarkana, A. S. Baskett, of Dallas, and Hiram Glass, of Austin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted of accomplice to arson and assessed the lowest punishment authorized by law. ■

After the formal part of the indictment, it avers that on or about September 19, 1910, T. E. Allen did “unlawfully, willfully, and maliciously set fire to and burn a certain house of one D. S. Arnold, * * * said house being then and there insured against loss and damage by fire,” and “that D. S. Arnold, in said county and state aforesaid, and before the commission of said offense of arson, by the said T. E. Allen as aforesaid, to wit, on or about the 1st day of September, A. D. 1910, did unlawfully and willfully promise and agree to pay to him (the said T. E. Allen) the sum of $500 in order to procure him (the said T. E. Allen) to commit the offense of arson as aforesaid, and by such promise and agreement did procure and induce the said T. E. Allen to burn said house aforesaid, which was then and there insured against loss or damage by fire, and in order to procure and collect the insurance on said house; the said D. S. Arnold not being present at the commission of said offense by the said T. E. Allen.”

Appellant moved to quash said indictment on these grounds: (1) It failed to allege any offense. (2) It failed to allege or sufficiently allege the commission of any offense by Allen. (3) It failed to allege facts sufficient to show Allen guilty of Arson, particularly that the house burned by Allen, when burned, was owned by appellant, and no facts were alleged which made it unlawful for him to burn his own house, except that it was insured against loss or damage by fire, and that it was not burned by Allen with appellant’s knowledge, consent, and procurement, and that Allen knew when he burned it that it was so insured; nor were any facts alleged which show that Allen knew of any facts existing which would have made it unlawful for appellant to burn or cause it to be burned, nor that Allen knew that his (appellant’s) purpose in procuring the burning was to procure the insurance, nor to enable him to collect the insurance. (4) It is not alleged by whom or in what manner or by what authority the house was insured; neither are any facts alleged from which can be determined that said house was insured when burned.

Our statute (article 1200, P. O.) says:

“ ‘Arson’ is the willful burning of any house. * * *»

Article 1207, P. C., is:

“The owner of a house may destroy it by fire * * * without incurring the penalty of arson, except in the cases mentioned in the succeeding article.”

Article 1208, P. C., is:

“Exceptions. — When a house * * * is insured * * * the owner, if he burn the same, is guilty of arson, and shall be punished accordingly.”

Appellant’s motion to quash was correctly overruled. The indictment completely follows the statute and alleges everything necessary or proper to properly charge the offense of accomplice to arson against the appellant. It follows the standard forms. As to the principal, Allen, it was not necessary for the indictment to allege, only in the terms of the statute, that the house was insured, in order to charge him as principal with the burning. It was not necessary to allege that Allen knew that the house was insured. That was a matter of defense by him if he had been on trial as principal, and was a matter of defense, so far as appellant was concerned, when he was charged as an accomplice to the arson. Neither was it necessary to allege by whom or by what authority the house was insured. It was only necessary to allege that it was insured, under the very statute itself. Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427; Tuller v. State, 8 Tex. App. 501; Thomas v. State, 41 Tex. 27.

Appellant contends that, before the state could secure his conviction, it was necessary for the state to prove that appellant had a valid insurance policy issued by some company authorized and permitted to do so, and that it was necessary for the court, in his charge, to explain to the jury what was meant by insured against loss or damage by fire. These questions are raised and presented in various ways.

Wp have quoted our statutes above, applicable to these questions. It will be seen therefrom that our statute does not require that the intent of an appellant, when he burns insured property, is to defraud the insurance company. The offense is simply and solely that the property is insured at the time he burns it. That this is not required is made manifest when we consider article 1220, P. C., which provides:

“If any person, with intent to defraud, shall willfully burn any personal property owned by himself which shall be at the time insured against loss or damage from fire, he shall be punished,” etc.

Under that article it would be necessary to allege and prove that in burning the insured property it was with intent to defraud.

In 2 Whart. Or. Law, § 1077 (11th Ed.) he says:

“Under a statute making it an offense to bum insured property with intent to defraud the insurer, the burden is on the prosecution to prove that the property was insured; some of the eases hold that the proof must show a valid, subsisting insurance, as the statute prohibits only the burning of property actually insured; but the better opinion is thought to be that the gravamen of the offense is the burning of the property with the intent to injure the insurer by realizing the insurance, and that the legality of the policy, or the right of the insurance company to do business in tbe state, is not a material issue, and it will be sufficient to show the delivery of a policy of insurance to the defendant, without showing that the insurance was valid and he could collect thereon” — citing the decisions of several states.

In 1 Ency. of Ev. p. 987, it is said:

“It is unnecessary to prove the legal existence of the insurance company, nor the validity of the policy of insurance issued to the accused, nor that the latter could sue upon such policy” — citing a large number of cases from various states and from the United States Supreme Court.

3 Cyc. 1003, says:

“It must be alleged that the property burned was at the time insured against fire; but the indictment need not aver that accused held a valid policy or any policy, nor need the policy be set forth according to its tenor” — citing a large number of cases.

In 5 A. & E. Ency. of Law & Prac. 596, it is said:

“It has been held that the insurance policy need not necessarily be valid if the defendant believed it to be valid.”

That author notes, however, that the authorities do not uniformly so hold.

In support of these texts and fully bearing them out, the following cases are cited: U. S. v. Amedy, 11 Wheat. 392, 6 L. Ed. 502; State v. Byrne, 45 Conn. 273; McDonald v. People, 47 Ill. 533; People v. Hughes, 29 Cal. 257; People v. Morley, 8 Cal. App. 372, 97 Pac. 84; Johnson v. State, 65 Ind. 204; People v. Jones, 24 Mich. 215; Parb v. State, 143 Wis. 561, 128 N. W. 65; State v. Tucker, 84 Mo. 25; Cowan v. State, 22 Neb. 519, 35 N. W. 405; Commonwealth v. Goldstein, 114 Mass. 272; People v. Schwartz, 32 Cal. 160; U. S. v. McBride, 7 Mackey (D. C.) 371; Carncross v. People, 1 N. Y. Cr. R. 518; Freund v. People, 5 Parker, Cr. R. 198; Evans v. State, 24 Ohio St. 458.

Appellant invokes the rule which is well established to the effect that, when a person, place, or thing necessary to be alleged in an indictment is described particularly, all of the descriptions must be proved, for they are made essential to the identity of the person, place or thing. He attempts to apply this to various things in the indictment. Thus the indictment, as shown above, alleged that said Allen “unlawfully, willfully, and maliciously set fire to and burned said house.” He claimed that because the indictment used the word “maliciously,” unless the court required that this should be proven, and that it had been proven, they must acquit appellant. Again the indictment copied above, among other things, alleges that appellant, in Somervell county, Tex., before the commission of this offense, promised and agreed to pay Allen $500 to procure him to burn said house. He claims that the state was bound to prove that he promised and agreed to pay Allen $500, no more and no less, and that the state must prove that this agreement to pay this money was in Somervell county and not elsewhere. In our opinion none of these contentions can be sustained. It is wholly immaterial where appellant was when he agreed and . promised to pay Allen $500 to burn said house. It is no part of a necessary allegation to show the offense. It was not necessary to so allege. That part of the allegation not only could but should be regarded and treated as sur-plusage. See Goodwin v. State, 158 S. W. 275; Byrd v. State, 162 S. W. 360; Thompson v. State, 152 S. W. 894; and a large number. of cases cited in these. The text-books are to the same effect.

An indictment which alleges the theft of two horses is met by proof of the theft of only one of them. It is unnecessary to prove the theft of both. Alderson v. State, 2 Tex. App. 10; Edwards v. People, 26 Colo. 541, 59 Pac. 56; Edson v. State, 148 Ind. 283, 47 N. E. 625; 1 Whart. Crim. Ev. § 129. Where the theft of a specific amount of- money is alleged, proof that any sum, either more or less, was stolen, is sufficient. Robinson v. State, 62 Tex. Cr. R. 646, 138 S. W. 704. An indictment alleging that strychnine was mingled with coffee with the intent to kill two persons, naming them, proof that the intent was to kill only one of them was sufficient. Terry v. State, 62 Tex. Cr. R. 73, 136 S. W. 485. See, also, Mansfield v. State, 17 Tex. App. 468; Monford v. State, 35 Tex. Cr. R. 239, 33 S. W. 351; Scott v. State, 46 Tex. Cr. R. 305, 81 S. W. 950; Nite v. State, 41 Tex. Cr. R. 342, 54 S. W. 763.

2 Bish. New Crim. Proc. § 478, says:

“Needless words and averments may ordinarily be treated as mere waste material, having no legal effect whatever. They need not be proved or otherwise regarded. For example (section 479), an indictment either on a statute or at the common law, fully setting out the offense, is not rendered ill by the addition of matter aggregating it beyond the laws defining.”

In Howard v. State, 143 S. W. 181, the indictment alleged the forgery of an instrument “with intent to injure and defraud.” It was held the court correctly charged that if appellant forged the instrument with intent to injure or defraud, etc. Berliner v. State, 6 Tex. App. 182.

Previous to the indictment in this case, appellant had been indicted for the same offense in Somervell county, arrested, and made bond therein. The state sought to show, and introduced testimony tending strongly to show, flight by appellant, and as bearing on this issue it introduced in evidence the previous indictment which seemed to have been defective, and the judgment nisi therein forfeiting his said bond. Appellant objected to this because the indictment was in a different case; that it was defective and charged no offense, was immaterial and irrelevant, etc. The court, in qualifying his bill, stated that the state sought to show his flight to avoid trial at a previous term of court for the offense for which he was at this time being tried, though under different indictment. This evidence, in our opinion, was admissible for the purpose, as indicated by the court’s qualification.

Appellant has two bills of exceptions. After giving the style and number of the cause, etc., one of them states that the state offered in evidence wbat purported to be a certain policy of insurance issued to J. L. Keaton by the Ginners’ Mutual Underwriters of San Angelo, unincorporated, borne office Dallas, Tex., an organization of gin owners for mutual protection against loss by fire, wind, or lightning, as provided by the terms of such policy (which is too lengthy to be copied in the bill), purporting to insure the house described in the indictment, and the machinery, etc., therein contained, against all direct loss or damage by fire in the sum of $1,400, purporting to have been executed by said concern July 15, 1910, by and through L. A. Murff, manager; said policy being the same and only one offered or introduced in evidence by the state. This is the whole substance of the statement in the bill pertaining to the matter. No other statement whatever is made as to the status of the case, the proof, or anything else. Then follows appellant's objections to the introduction of said policy. They are: (1) It is not issued by any corporation, but by an organization of gin owners, and the state had not proved who any of them were or who constituted such organization. (2) That it was not shown that Murff, who purported to act as manager, had any authority from said concern to act for them or execute and deliver said policy. (3) That it was not shown that Murff executed said policy. (4) Its execution was not proven by the state. (5) It was not shown that said concern had complied with the laws of the state or were authorized thereby to issue said policy. The bill then states these objections were overruled, and the policy was admitted in evidence. The court qualifies the bill by stating that on said policy which was issued to said Keaton, the then owner of the gin, it was transferred to defendant in writing by Keaton after defendant traded for the gin, and the signature of Keaton to said transfer was proven, and the defendant in writing accepted the transfer and signed the .acceptance, and his signature thereto was proved, and after the fire he attempted to collect the insurance under said policy.

The other of said bills, after the formal parts, style, number of cause, etc., stated that the state offered in evidence the said transfer of Keaton to him and the acceptance, etc., of said transfer by said Ginners’ Mutual Underwriters, which was in the following language:

“For and in consideration of the above application, the terms of which is made a warranty on the part of D. S. Arnold of Dallas, Tex., to assume the payment of all dues and assessments now due or that may become due on policy No. 1593, issued to J. L. Keaton of Glen Rose, Tex., and that the said D. S. Arnold of Dallas, Tex., warrants and agrees to abide by all of the conditions of the policy, and of the application for said policy. The Ginners’ Mutual Underwriters of San Angelo does this day cause said policy to be transferred to the said D. S. Arnold of Dallas, Tex. This the 3d day of Sept. 1910. Ginners’ Mutual Underwriters of San Angelo, L. A. Murff, Manager.”

Appellant objected to this for substantially the same reasons as to the introduction of the policy above noted. The court qualified the bill by stating that defendant testified he knew Murff as manager of the Gin-ners’ Mutual Underwriters of San Angelo, and that upon receipt of the policy by mail from Keaton of Glen Rose, Tex., he (defendant) personally took said policy to the office of Murff in Dallas for the purpose of having said Murff to execute the transfer set out in the bill; that Murff was not'iff the office at the time, and that he left it in said office with Murff’s employé to be executed upon Murff’s return; that defendant returned to said office the next day, and Murff’s stenographer handed to him the policy so transferred and executed, as sljown by this bill; that Murff was not in the office on defendant’s return for the policy. And he further testified that on learning of the fire he immediately went to the office of Murff and notified him of the fire and had Murff to phone and ascertain whether or not the gin was actually burned.

These bills and neither of them, under the long and well-established rules, are sufficient to authorize or justify this court to consider them. Some of these rules are noted in James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612, and Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Best v. State, 164 S. W. 997. By said rules it is clearly established that appellant’s objections in the bill are not statements of facts, and that the judge signing the bill does not certify that such objections are statements of facts, but his signature merely attests .the fact that such objections were made. We could not, from these bills, tell whether these documents were admissible in evidence or not, except that the court’s qualification of them indicates that they were admissible. The duty of appellant is to show by the bills affirmatively by a statemént of facts, and not by objections, that the evidence was inadmissible, and, unless he does so, we must hold that the court correctly overruled same. As an illustration of why this is necessary, we would be put to the necessity of going to a statement of facts in this case, which is in fine typewriting, containing 110 pages, and in the ordinary type it would amount to at least 125 pages, and search this whole statement of facts to learn whether or not this evidence was admissible.

But, if we were to go to it, we would find that the facts and circumstances therein shown would clearly show that these documents objected to were admissible in evidence, and that they were amply proven up. What we have said above about the policy of insurance, and what the state has to show, is applicable to this question, so far as the merits of the introduction of the policy transferred and acceptance by the company are concerned. Briefly stated, it -shows that appellant himself was the agent of said insurance concern that induced Keaton to insure said house and said concern to issue to Keaton said policy; that very soon afterwards he bought this insured property from Keaton, took a deed therefor to him, and had Keaton at the time to transfer and deliver said policy to him; that he took the poiicy himself to the insurance concern with Keaton’s transfer to him and had the company to assent thereto and so indorse its consent on said policy and redeliver the same to him; that as soon as he got the deed to the property and policy,' and practically as part of the same transaction, he hired said Allen to burn the gin in order that he might get the insurance thereon, agreeing to pay Allen either $500 or half of the insurance; that he» at the same time and in the same trade turned the property over to Allen as his agent and manager for said purpose; that Allen, in accordance with his agreement with appellant, burned said gin; that at the time he got the policy he regarded it as a valid policy and so regarded it after the burning; that he put it in his attorneys’ hands for collection and suit, if necessary, and that afterwards he authorized Mr. Alexander to settle policy with the company for him, and that Alexander did settle it with the company, and that he got part of the proceeds of what the company paid in settlement therefor. The evidence on some of these issues was contradictory, but it was amply sufficient to show the facts stated above. So that, even if we could consider the said bills, they present no error, and the evidence objected to thereby was admissible.

One of the material witnesses against appellant was J. W. Allen, the brother of T. E. Allen, who was appellant’s agent, and whom he hired to burn, and who did burn, said gin for him. T. E. Allen was indicted and convicted for burning said house. He appealed the case to this court, and it was affirmed, being reported in 62 Tex. Or. R. 501. i As soon as T. E. Allen was arrested, his brother, J. W. Allen, undertook to aid him in his defense and to assist in the employment of his attorneys. He had information that his brother had been employed by appellant to burn said gin in order to get the insurance, and that, in order to induce T. E. Allen to burn it, appellant had agreed to pay him $500 or one-half of the insurance, as stated-above. J. W. Allen sought repeatedly to induce appellant to pay T. E. Allen’s attorneys’ fee and to pay him what appellant had agreed to pay T. E. Allen to burn said house. The evidence is sufficient to show, and the jury was authorized to believe, that appellant did convey the lot, on which the gin had been burned, indirectly to one of T. E. Allen’s attorneys as a fee for defending T. E. Allen. This is the sole connection that J. W. Allen had with the offense. There is no intimation that he was a principal or accomplice to the arson, and that what he did after both offenses were completed — the arson and the accomplice to arson — was directly aiding his brother in the defense of his suit and, after his conviction, seeking to have him pardoned. This, neither under the statute nor decisions, made him an accomplice, so that his testimony had to be corroborated. P. C. art. 87; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Davis v. State, 62 Tex. Cr. R. 537, 138 S. W. 396; Smith v. State, 51 Tex. Cr. R. 141, 100 S. W. 924; Robertson v. State, 46 Tex. Cr. R. 442, 80 S. W. 1000; Chenault v. State, 46 Tex. Cr. R. 355, 81 S. W. 971; Holley v. State, 49 Tex. Cr. R. 307, 92 S. W. 422, 122 Am. St. Rep. 810.

So that the court did not have to charge that J. W. Allen was an accomplice or submit that question to the jury and require that his testimony be corroborated, but, as the court did submit the question and require his testimony to be corroborated, this was in appellant’s favor and not against him, and, even if any error had been made as claimed in the charge on this subject, it would present no reversible error. The evidence was clearly and amply sufficient to sustain the conviction.

While we have not taken up each and every one of appellant’s assignments of error, what we have said embraces and disposes of all of them. It was not necessary to take up each separately.

There is no reversible error shown in the trial of this case, and the judgment will be affirmed.


author: PHILLIPS, J.

text:
    CHICAGO, R. I. & G. RY. CO. v. PEMBERTON.
    (Supreme Court of Texas.
    June 26, 1914.)
    On motion for rehearing.
    Petition overruled.
    For original opinion, see 161 S. W. 2.
   PHILLIPS, J.

It is urged in the defendant in error’s motion for a rehearing that the Court of Civil Appeals should not be required under the ruling of this court to consider the first assignment of error made in that court by the plaintiff in error, for the reason that, apart from other questions, it is too «general in its terms. The honorable Court of Civil Appeals did not decline to consider the assignment for this reason, and upon that account we did not, in the opinion, notice this as a ground of objection to its consideration. We do not wish to be understood as holding that the assignment is good as against such objection. While the opinion contains no reference to this question, it is open to the construction that the court of Civil Appeals should consider the assignment, notwithstanding it might deem this a sufficient objection; and in overruling the motion it is perhaps proper, therefore, that we should amend the opinion in this particular.

The motion for rehearing is overruled.


author: SPEER, J. C. M. and W. H.

text:
    TEXAS & P. RY. CO. v. CAUBLE et al.
    (No. 7968.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 23, 1914.
    Rehearing Denied July 4, 1914.)
    1. Appeal and Error (§ 770) — Briefs — Failure to File Bbiees.
    Under rule 41 for Courts of Civil Appeals (142 S. W. xiv), providing that whatever of the statements of appellant or plaintiff in error in his brief is not contested will be considered as acquiesced in, where appellees filed no briefs, the statements in appellant’s brief would be regarded as acquiesced in.
    TEd. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3106, 3107; Dec. Dig. § 770.]
    2. Evidence (§ 553) — Examination of Experts — Hypothetical Questions — Assumption op Facts.
    In an action for delay in transportation of a shipment of live stock, evidence as to the effect of a 24-hour delay was improperly admitted, where there was no evidence of such delay, since every hypothetical question to an expert should be based upon a supposed case finding support in the testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.]
    3. Evidence (§ 309) — Declarations op Agent — Admissibility.
    In an action for delay in transporting a shipment of live stock, evidence that the conductor told the witness that under the rules of the company 800 tons was the minimum for a through freight and 1,200 tons for a Red Ball freight, and that he had over 1,200 tons of Red Ball stuff, was improperly admitted, in the absence of any showing that the conductor had authority to bind the company respecting the matter testified to.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §' 1162; Dec. Dig. § 309.]
    4. Evidence (§ 317) —Hearsay — Statements by Third Person.
    In an action for delay in transporting a shipment of live stock, evidence that the conductor told the witness that he sent a message to the dispatcher asking permission to make his train a through freight, and that the dispatcher refused such permission, was hearsay, and should have been excluded.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dee. Dig. § 317.]
    5. Carriers (§ 228) — Injuries to Live Stock — Necessity op Showing Similarity op Conditions.
    In an action for delay in transporting a shipment of live stock, evidence that the train containing 16 cars took a siding to wait for a through freight train with only 13 cars, intended to show that the carrier was negligent in not handling plaintiff’s cattle as a through shipment, should not have been admitted in the absence of testimony tending to show similar conditions, especially where there was nothing to indicate that the train of 13 cars was not receiving extraordinary care.
    [Ed. Note. — For other eases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    6. Carriers (§' 228) — Injuries to Live Stock — Necessity op Showing Similarity op Conditions.
    In an action for delay in transporting cattle, evidence as to the time consumed by former shipments made by plaintiff over defendant’s road should not have been admitted, where the conditions were not shown to be the same.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 957-960; Dec. Dig. § 228.]
    7.Trial (§ 243) — Instructions — Contradictory Instructions.
    In an action against carriers for delay in transporting a shipment of cattle, an instruction that the T. company, the initial carrier, was not responsible for any damage not directly and proximately caused by its negligence, and that the T. & P. company was not responsible for any damage not directly and proximately caused by its negligence, and another instruction that, since the T. company was responsible to plaintiff under its contract of through shipment for delay occurring on any of the connecting carriers if the jury found that the delay occurred on the T. & P., they should find for the T. company, over against the T. & P., such amount as they might find in favor of plaintiff against the T. Company, were contradictory.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.]
    Appeal from Shackelford County Court; J. A. King, Judge.
    Action by C. M. Cauble and another against the Texas & Pacific Railway Company and another. From a judgment against it in favor of plaintiffs and the other defendant, the defendant named appeals.
    Reversed and remanded in part.
    The defendant Morris testified that the conductor said he sent a message to the dispatcher, asking permission to make his train a through freight, so that he could reach the morning market with the cattle, and that the .dispatcher replied that he must go ahead and do his work along the route as originally directed.
    Earl Conner, of Eastland, for appellant. Spell & Sanford, of Waco, and Walter L. Morris, of Albany, Tex., for appellees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   SPEER, J. C. M. and W. H.

Cauble instituted this suit in the county court of Shackelford county against the Texas Central Railroad Company and the Texas & Pacific Railway Company to recover damages for the alleged failure on the part of the railway companies to exercise ordinary care in the transportation of 139 head of cattle from Albany to Ft. Worth, resulting in the loss of the morning market of September 26, 1912. The defendants answered, the Texas Central Railroad Company sought judgment over against its codefendant, there was a trial before a jury, resulting in a verdict and judgment for the plaintiffs against both defendants, and over against the Texas & Pacific Railway Company in favor of the Texas Central Railroad Company. The Texas & Pacific Railway Company alone appeals.

No briefs have been filed for appellees, and under rule 41 for the Courts of Civil Appeals (142 S. W. xiv), we are authorized to consider the statements of the appellant in its brief as being acquiesced in, and we have, accordingly, done so.

On the trial the court permitted the witnesses C. M. Cauble and W. H. Cauble to testify as to the effect that a 24:hour delay would have on the cattle shipped from Albany to Et. Worth, over the lines of the defendant companies, and this was objected to on the ground there was no evidence of a 24-hour delay on which to base such hypothetical question. The statement submitted by appellant under the assignment presenting this question shows that no such testimony was before the court, and it was therefore error to permit the witnesses to testify as they did. Every hypothetical question to an expert should, of course, be based upon a supposed case finding support in the testimony. St. L. & S. F. Ry. Co. v. Deane, 152 S. W. 527.

The witness Walter Morris was permitted to testify for the appellees, in which he detailed a conversation with the conductor of the train carrying the cattle in question. He said:

“The conductor told me that the rules of the company were that 800 ton was the minimum for a through freight, and a 1,200 tonnage for a Red Ball freight. The conductor told me that he had over 1,200 tonnage all Red Ball stuff.”

According to the statement submitted by appellant there is nothing in the record to show that the conductor had authority to bind the company with respect to the matter involved in this conversation, and the court, therefore, erred in permitting the testimony. St. L., I. M. & S. Ry. Co. v. Carlisle, 34 Tex. Civ. App. 268, 78 S. W. 553. This same witness, Morris, was permitted to detail another conversation with the conductor concerning the sending and receiving of a message to and from the chief dispatcher of the Texas & Pacific Railway Company, which was pure hearsay, and should on that objection have been excluded.

It was also error to permit the testimony of this same witness, to the effect that:

“When we got to the rock crusher a few miles east of Ranger, we took a siding and waited for a freight' that they said was a through cattle freight from the West. I got out and counted the cars of cattle on the through freight, and it had 13 cars while we had 16.” ’

This clearly was intended to show that the defendants were negligent in not handling appellees’ cattle as a through shipment by showing that a train load having less cars was handled as a through shipment. Comparisons should never be permitted in the absence of testimony tending to show similar conditions (T. & P. Ry. Co. v. Good, 151 S. W. 617), and especially in the present case there was nothing to indicate that á train of 13 cars, being handled as a through train, was not receiving extraordinary care. Upon the same principle, that is, that comparisons are not permissible except when the conditions are shown to be the same, it was error to permit the witness C. M. Cauble to testify as to the time consumed by him in former shipments over appellant’s line of road. We are inclined to think the first and eighth assignments complain of the admission of evidence which would not have been admissible as against this appellant upon a proper objection, or at least if the same had been admissible as against appellee, the Texas Central Railroad Company, appellant, would have been entitled, upon a proper request, to a charge limiting its effect as to it. The admissibility of account sales in evidence has been considered in the cases of I. & G. N. Ry. Co. v. Startz, 97 Tex. 167, 77 S. W. 1, and F. W. & R. G. Ry. Co. v. Cauble, 41 Tex. Civ. App. 348, 91 S. W. 244.

The remaining assignments relate to charges given or refused, and all have been considered and overruled. We take occasion, however, here to say there is a very patent contradiction in the charges submitted by the court on the last trial. In section 4 of the main charge the jury are told:

“You are instructed that the Texas Central is not responsible for any damage, if any, which was not directly and proximately caused by the negligence of the said Texas Central Railroad Company, and the Texas & Pacific Railway Company is not responsible for any damage, if any, which was not directly and proximately caused by the negligence of the said Texas & Pacific Railway Company.”

Special charge No. 5, given at the instance of the Texas Central Railroad Company, is:

“You are instructed that since the Texas Central is responsible to the plaintiff under its contract of through shipment for delay, if any, which may have occurred on any of its connecting carriers, now, if you find that the delay did not occur on the Texas Central, but on the Texas & Pacific, you will find for the Texas Central over against the Texas & Pacific such amount as you may find in favor of plaintiff against the defendant Texas Central.”

The jury did find over against appellant in favor of the Texas Central Railroad Company for the exact amount of appellees’ recovery. No point is made in appellant’s brief as to this confusion of charges, but we advert to the same in view of another trial.

For the errors indicated the judgment in favor of appellees against appellant is reversed, but the judgment in favor of appel-lees C. M. & W. H. Cauble against appellee Texas Central Railroad Company is in no manner disturbed.

Reversed and remanded in part.