author: PRENDERGAST, P. J. DAVIDSON, J.

text:
    KLINE v. STATE.
    (No. 3663.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    On Motion for Rehearing, Feb. 2, 1916.
    Dissenting Opinion, April 12, 1916.)
    On Motion for Rehearing.
    1. Ceiminal Law ©=>1169(6) — Appeal — Haemless Eebob — Admission op Evidence —Cube by Veedict.
    In a prosecution for arson, error, if any, in the admission of a letter written by defendant, over the objection that statements made therein were prejudicial to him, does not require a reversal of the conviction where the jury assessed the minimum punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3143; Dec. Dig. ©=>1169(6).]
    2. Abson ©=>37(1) — Prosecution—Sufficiency of Evidence — Alibi.
    In a prosecution for arson, evidence held not to show that defendant was in a different city when his building was burned.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. § 71; Dec. Dig. ©=>37(1).]
    Davidson, J., dissenting.
    Appeal from District Court, Clay County; J. W. Akin, Judge.
    P. J. Kline was convicted of arson, and he appeals.
    Affirmed.
    G. H. Culp, of Gainesville, and Arnold & Taylor, of Henrietta, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of arson, and his punishment assessed at the lowest prescribed by law.

He has several bills of exceptions. The state objects to these, claiming they are wholly insufficient to authorize or require this court to consider them. As a sample of them, we will state the substance in full of his first bill, quoting part:

It gives the' style and number of the cause, the court and term, and states that upon the trial the state offered in evidence this letter:

“Henrietta, Tex., August 17, 1914. Mr. C. W. Martin, Omaha, Neb. — Dear Sir: Inclosed you will find a chock, $25.00, the balance due on the insurance policy of our school. I-have had great difficulty with our school in order to get it on a running basis, and hope by the first of November to be able to have a good little school for our children. I have a great obstacle to contend with, or we few Oatholies have here, as we are surrounded by Protestant bigots and they seem to hate a Gatholie school, and have done all in their power to cheek us. However, I hope with God’s grace and help we will be able to overcome this prejudice. Thanking you for the favors you have extended us, and with best wishes, I am, Yours in X D, Rev. Philip J. Kline. Henrietta, Texas, Box 273.” [Ex. No. 45.]

That he objected to it being introduced in evidence, and especially to that part which we have italicized above, on these grounds: (1) It was wholly irrelevant and immaterial. (2) It did not prove or tend to prove any issue in the case. (3) It was highly prejudicial to his rights. That the court overruled his objections and permitted the letter to be read in evidence, to which he excepted. The court approved it with these qualifications and conditions:

“The objections urged in this bill were made at the time the 'district attorney was reading said letter to the defendant on cross-examination, while said defendant was testifying in his own behalf, and before said letter had been offered in evidence by the state. Before said letters, including this one, were offered in evidence, the following proceedings were had, while the defendant was still testifying in his own behalf on redirect examination by Hon. R. E. Taylor, attorney for defendant: Mr. Taylor, after interrogating the defendant about the amount of improvements he had placed on the burned building, asked the following questions: Q. State whether or not you now say, since you have gone over and read these letters, about what you would say was the amount of money in the aggregate, that you spent on this building? A. I would figure between $2,500 and $3,000. Mr. Taylor: I want to offer in evidence the letters you read here. (It is claimed by counsel for defendant that this offer was made for the purpose of showing his expenditures on the building, only; and I accept his version of his offer.) Said letters, including the one here in question, were thereupon offered in evidence, and read to the jury by district attorney. This qualification applies also to all the other letters introduced.”

The rules prescribing the requisites of bills of exceptions have been so long and clearly established and reiterated again and again in the books and decisions that we will not again state or quote them here. We merely will again cite some of the cases and the authorities on the subject. Section 857, p. 557, White’s Ann. C. C. P., and section 1123, p. 732; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ortiz v. State, 151 S. W. 1058; Best v. State, 72 Tex. Cr. R. 201, 164 S. W. 997; Arnold v. State, 74 Tex. Cr. R. 269, 168 S. W. 125. Measured by these rules, there can be no question but that this bill is so wholly deficient as not to authorize or require this court to consider the point attempted to be raised by it.

’ No facts are given to enable us to understand whether the ruling is correct or not. It sets out none of the proceedings so that we can tell anything about it. All it tells is the state introduced said letter in evidence over his said objections: (1) How or why it was irrelevant or immaterial is in no way shown or intimated by the bill. (2) It in no way shows what “any issue in the case” was, •so we can possibly tell whether or not it tended to prove them or any of them. (3) It in no way shows how or why it wrongly prejudiced his rights. A mere assertion by him of said several objections in no way shows or tends to show they or any of them are true or good. We are forbidden by the rules to go to the record or statement of facts to aid or defeat his bill. It, of and within itself, must give us all necessary information. The qualification of the judge controls the bill, and it in no way aids, but is against, his bill. It shows appellant himself regarded the letter as material and relevant, and as tending to prove some issue in the case, because he introduced it in evidence before the state did, and before he objected to the state doing so. All pertinent and relevant evidence, if incriminating, necessarily, injures an accused’s rights as tending to show him guilty, or rebut some claimed defense he may assert. That is the very reason it is admissible, and should be introduced. If we could resort to inferences, which the rules forbid, and judging by appellant’s brief, we might infer appellant thought the jurors might not be Catholics, “but Protestant bigots,” and influenced against him by his particular language in his letter specially objected to. But, if so, the bill in no way shows it, nor that the jurors are not Catholics. It shows nothing on the subject. Nor does the record otherwise show that any or all the jurors were Protestants, whether bigots or not, or that they were not Catholics.

But suppose we should consider the bill. Then it must be considered in the light of the whole record. It would be but fair to both sides to do this, if it is to be considered at all. Then what do we find the record to show in connection with this bill? We will state some of the salient features which are in no way stated by the bill.

The indictment charged that appellant burned his own house, it being insured at the time. The testimony showed it had been an old school building of the city of Henrietta long since abandoned, and unoccupied for any purpose, years before, and all the time it was owned by appellant, and at the time it was burned. That he bought it and the more than two blocks of ground on which it was situated from said city about two years before it was burned, for $2,200, paying only $200 cash, and giving his three notes in about equal amounts for the balance due in 6, 12, and 18 months thereafter. That during the time he owned it he made certain alterations in the internal arrangement of the building at a cost claimed by him to be about $2,500 to $3,000. These alterations by no means added the costs thereof to the value of the building, for one of the doctors to whom appellant offered to sell it for a hospital, very shortly before it was burned, testified said alterations injured the building for hospital purposes. It was shown appellant offered to sell it to some doctors, at first pricing it to them at about $'6,000. They declined to buy at that price. One real estate agent testified that $2,500 was a fair market value for the building and ground at the time the building was burned. Mr. Peninger, assistant state fire marshal, who talked to appellant very soon after the fire, testified appellant then told him he had offered to take $3,500 from the doctors for the building and ground for a hospital, and his faint recollection was appellant also at that time said the ground alone, without the building, was worth $2,000 to $2,500. Appellant did not deny any of this. That in order to get a loan on said building and ground from the Marquett Life Insurance Company, for about $1,800, which he did, on March 1, 1913, he took out a fire insurance policy in his favor on said building from, a local agent at Henrietta in the Commercial Insurance Company for $2,500 with loss payable to said life insurance company to also secure it in said loan, and that one year later, March 1, 1914, he had that policy renewed for another year. That on March 19¡ 1913, he also for himself insured said building for three years in the Catholic Mutual Relief Society of Omaha, Neb., through its secretary, Mr. Martin, at Omaha, for $8,000 additional. Said relief society was exclusively owned and controlled by Bishops of the Catholic Church, and Mr. Martin was a Catholic. Appellant was a Catholic priest, and had resided at Henrietta and had his home and church building and organization, and ministered there, for about five years before and at the time of said fire. The evidence tends strongly to show, if it does not clearly do so, that appellant did not tell either of said insurance companies at the time he took out said insurance policies, and renewed said $2,500 one, of the insurance he was taking out from the other company, and that neither company, nor any agent of either, had any notice or knowledge thereof until long after said fire. That when appellant was first interviewed by Mr. Peninger and others soon after said fire he repeatedly and specially and positively stated to them that he had no insurance whatever on said building except said $2,500 policy, and that when said house was burned he was in Ohio, telling particularly the route and railroad he went and the cities he passed through and a certain priest he had seen in Ohio on the trip. All his said statements were conclusively shown to have been false. Mr. Easley, the adjuster for said Catholic Relief Society, swore that, when he first saw appellant after the fire, appellant told him he had no insurance whatever except in said Catholic Relief Society, and he found out about said $2,500 policy later. Said building was shown to have been burned — -entirely consumed by fire —just after nightfall on Friday, October 9, 1914. The evidence was wholly circumstantial, but tended very strongly, if it did not conclusively, to show that appellant himself burned his building; at least, it was amply sufficient for the jury to so believe and find. His defense was alibi.

Evidently the state’s theory and contention was that appellant burned his own building to get said very large and excessive amount of insurance, and that his scheme was, even before the fire, to represent to Mr. Martin, the secretary of said relief company, a Catholic, and prepare and induce him to believe that, when he himself should burn it, it was not he, but some “Protestant bigot,” his or his church’s enemy;. and the state’s further theory and contention was that, also, after the fire he continued such representations to thereby induce said Martin, and relief association, to pay him said $8,000- insurance before said Martin or said relief society knew of said other $2,500 policy, or suspected him of burning his house to get the insurance. In pther words, the state’s theory and contention evidently was that appellant was attempting to divert suspicion from himself by false representations both before and after the fire — clearly fabricating his defense, or attempting to do so.

Under these issues, if we could consider his bill, clearly said letter was admissible as tending to show his attempted fabricated defense, and his attempt to divert suspicion from himself, and also induce said Martin and relief society to pay him said $8,000 before they could learn the full truth. This 'evidence was just as admissible as was his false statements that he was in Ohio when his house burned, thereby attempting to falsely fabricate an alibi. Baines v. State, 43 Tex. Cr. R. 497, 66 S. W. 847; section 1052, sub-div. 6, Wh. Ann. C. C. P., and authorities there cited; 2 Wh. on Crim. Ev. pp. 1752, 1753, and page 1485; sections 1070 and 1072, Wh. Ann. C. C. P., and authorities cited. All the authorities are to the same effect. The statement of facts shows appellant himself testified:

“Personally I do not think there was any prejudice or ill feeling towards me as a Catholic priest before this fire. I do not think there was any prejudice or ill feeling here towards the Catholic Church; I should not think there would be.”

•The jury certainly were not in the slightest influenced by his said language in said letter, even if it should be held inadmissible, for they assessed the lowest penalty authorized- by law.

What we have said and held as to appellant’s first bill equally applies to his second, and others objecting to letters.

Appellant’s third bill shows that, while the district attorney was commenting on one of his letters in' evidence, he said he wondered if appellant did not know it was a violation of the federal law to send it through the mail, Appellant objected do this. The court promptly sustained his objection, and instructed the jury not to consider said argument. This presents no error. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Martoni v. State, 74 Tex; Cr. R. 90, 167 S. W. 351; and other cases there cited.

The district attorney had the right to comment, as he did, on appellant’s letter and his testimony as complained in appellant’s fourth bill.

We must assume, and it is no doubt a fact, that the court prepared his charge and furnished it to appellant’s attorneys before the argument and before he read it to the jury, as the law requires. They had ample opportunity to make objections thereto in writing, as the law also requires. They made none. However, while said letters were .being introduced in evidence, they “verbally requested the court to limit said, letters and the matters contained therein for the purpose for which the same were admitted.” The court then informed them, if they would write such charge' he would give it to the jury. They did not write nor request such charge in writing. Appellant’s bill on this subject does not indicate what limit should have been placed on the letters, etc. Clearly, under the law as it now is — not as it formerly was — the burden is not wholly on the judge, but is also on the appellant and his attorneys to see that a correct charge is prepared and given. It appears to us that even if any charge on the subject should have been given at all, then it was appellant’s fault, and not the court’s, that it was not given, and as the matter is presented no error was committed.

Appellant complains of the court’s refusal to let Mr. Coughanour answer a certain question. The bill in no way shows what his answer would have been, and hence presents no error even if the question had been such as was proper for him to have answered.

It was shown that appellant had a clergyman’s certificate from the railroads. This authorized him, when purchasing a ticket, by filling out a blank, giving the name oí the place to which he wanted the ticket, and signing his name, to get the ticket ax, half price; the selling ticket agent stamping on the back of both ticket and stub the place and date of the purchase. He would keep the stub or application and present that and his ticket when the conductor or train auditor would collect tickets or fares. The conductor and train auditor had to and did, at the end of their runs, send to the proper railroad officials reports of these stubs and tickets, and all other tickets, and the tickets and stubs with them, indicating the train and time such were used on their trains. The state procured, produced, identified, and introduced in evidence, among others, appellant’s stubs showing that he purchased at Dallas a ticket from Dallas to Bridgeport October 8, 1914, on the Rock Island Railroad. That on the same day at Bridgeport in his stub. 41 he bought another ticket from, Bridgeport to Bowie from the same railroad. Bowie is where said railroad and the Ft. Worth & Denver cross. The Rock Island does not run from Bowie to Henrietta; the Et. Worth & Denver does. That on the night of October 8th, after midnight, which would make it in the early morning of October 9th, on his stub 42 he bought at Bowie, from the Et. Worth & Denver, a ticket from Bowie to Henrietta. The Rock Island night train from Dallas through Et. Worth to Bridgeport arrived at Bridgeport, schedule time, 11:45 p. m. and remained there five minutes, and reached Bowie after midnight — more than an hour after leaving Bridgeport. The ticket sold to appellant on stub 42 was sold in the early morning October 9th for train No. 7, north or west bound, which Was due to leave Bowie at 1:55 a. m. on the morning of October 9th and would arrive at Henrietta about an hour later, and was used on that train, as the evidence clearly shows. Night trains passing through Henrietta and Bowie south or east are shown to do so in the early morning after midnight. The Missouri, Kansas & Texas (Katy) Railroad is shown to run from Wichita Falls through Henrietta, and to and through Ringgold on to Et. Worth. Ringgold is where the Katy and Rock Island cross. The exact distance between Bridgeport and Bowie, and Bridgeport and Ring-gold, and Bowie and Henrietta, and Henrietta and Ringgold, are not given; but clearly such data is given, which shows these distances are short — taking from a short time over, to under an hour for trains to run. Neither is schedule time for trains passing through Henrietta south or east on the Katy at night .given, but such data is given as satisfies us they, like trains on said other railroads, pass through in the early morning — after midnight. Appellant’s stub 44 and ticket show, he bought and used, on October 10th, a ticket from Ringgold to Bridgeport, and stub 43 a ticket on October 11th from Bridgeport to Et. Worth.- All these canceled stubs, 40, 41, 43, and 44, the canceled tickets accompanying them respectively, were procured from the Rock Island Railroad, and stub 42 from the Et. Worth & Denver by said state’s witness Peninger, who swore that, when he told appellant he would or had procured them, appellant said “they did not exist,” that “there were no such tickets.”

There is no merit in appellant’s last two bills to Mr. Lingenfelder’s testimony which shows any reversible ■ error. Besides what he testified to is abundantly proven by other trainmen, and appellant himself, to which there was no objection.

As stated, appellant’s defense was alibi. When he first talked about the burning of his house after the fire, he told several parties positively he was in Ohio at the time of the lire. Eater, that he was in Et. Worth at the time. His attorneys now claim that he was in Bridgeport. At first after the fire, he likewise positively told those inquiring about said $2,500 policy that that was the only insurance he had, and, to those inquiring about the $8,000 insurance in the Catholic Relief Society, that that was the only insurance he had. Both his statements that he was in Ohio-, and about his insurance, were conclusively shown to have been false. If the jury had believed his testimony on the trial, that he was in Et. Worth when the fire occurred, they would have acquitted him.. They were clearly justified, from all the evidence, in not believing him, but to believe,as was in effect demonstrated by tbe evidence, that he was in Henrietta and himself set fire to and burned his house to get said insurance. We deem it unnecessary -to further state the testimony. We have carefully read and studied the record and statement of facts more than once, and are thoroughly convinced that the evidence is clearly sufficient to sustain the verdict.

The judgment will be affirmed.

On Motion for Rehearing.

The original opinion was prepared, and on full consultation with every member of the court was assented to at the time and before it was handed down. It was prepared after a most careful and thorough study of the whole record, the questions raised, and the authorities applicable thereto.

There are but few things further to be said at this time. An extensive argument is made wherein it is contended that appellant’s first bill of exceptions was sufficient under the rules not only to authorize, but to require, this court to consider the question therein attempted to be raised. Under the authorities, there can be no shadow of doubt but that said bill of exceptions was wholly insufficient under all the rules to require consideration by this court. There is not a case in all the books but that hold it insufficient, and not one that would hold it sufficient. But it is wholly unnecessary to discuss that question, because, as the original opinion clearly shows, we did consider said bill fully and completely and passed upon the question therein attempted to be raised. So that whether the bill was sufficient to require a consideration, or not, is wholly immaterial. It was considered. -In the consideration of it, however, we did so in connection with the whole record, and stated all the material matters which the record showed, so as to pass upon the question raised with reference thereto, and we held that the letter was admissible.

We also specifically held therein as follows:

“The jury certainly were not in the slightest influenced by his said language in said letter, even if it should be held inadmissible, for they assessed the lowest penalty authorized by law.”

This feature only of the matter will now be further treated.

It may be conceded for the sake of argument that the letter was inadmissible and the court erred in admitting it; but, if so, under the authorities, it would not require or authorize a reversal, for it was harmless error.

The rule on this subject is specifically stated by this court in Hester v. State, 15 Tex. App. 573, as follows:

' “If the illegal testimony was immaterial and irrelevant, and there was sufficient other evidence to support the conviction, such conviction would not be disturbed because of the error in admitting the illegal evidence. We believe such to be the correct rule of practice for this court in all cases except capital ones.”

As stated by this court in Haynie v. State, 2 Tex. App. 168, which is quoted in the Hester Case, supra, that it is when “illegal evidence of an important fact, material and pertinent to the issue,” is admitted over objections which will require a reversal. The court in the Hester Case further says that, if the evidence admitted over objections was immaterial and irrelevant to the issue, this court should not reverse, stating this position is “correct in all eases except capital ones.” To the same effect is Post v. State, 10 Tex. App. 594, in an opinion by Judge Hurt, wherein he quotes McWilliams v. State, 44 Tex. 116, for the rule that it is only where illegal and erroneous evidence is admitted over objections which goes to establish a material and pertinent issue in the case that it requires reversal, and in that case held that certain testimony admitted over the objections of the defendant did not authorize a reversal, because no injury therefrom occurred to the accused. He further holds:

“If this court must reverse for every irregularity, though objected to, whether it tended to injure defendant or not, it would be almost impossible in a great many cases to legally convict. The action of the court in this matter was wrong, but no injury appearing therefrom we cannot make it a ground for reversal.”

Again, this court, through Presiding Judge White, in Bond v. State, 20 Tex. App. 438, said:

“The erroneous admission of evidence is no ground for reversal when the appellant could not have been prejudiced by the evidence admitted. State v. Hallett, 63 Iowa, 259 [19 N. W. 206]; Evans v. State, 13 Tex. App. 225; Gose v. State, 6 Tex. App. 121.”

To the same effect is Saddler v. State, 20 Tex. App. 196.

In King v. State, 42 Tex. Cr. R. 109, 57 S. W. 840, 96 Am. St. Rep. 792, Judge Davidson said:

“The admission of irrelevant or inadmissible testimony will not require a reversal unless its effect upon the defendant’s case was probably injurious. * •* * If the punishment allotted had been above the minimum, this error would have required a reversal, for in that event its operation might have been prejudicial.”

Presiding Judge Hurt and Chief Justice Roberts said:

“To reverse in the absence of probable injury would be contrary to principle.” Davis v. State, 28 Tex. App. 560, 13 S. W. 994; Bishop v. State, 43 Tex. 390; Alexander v. State, 63 Tex. Cr. R. 134, 138 S. W. 721.

This rule that immaterial evidence erroneously admitted over objections is not ground for reversal and is harmless error is fully discussed in Tinsley v. State, 52 Tex. Cr. R. 95, 106 S. W. 350, wherein Judge Brooks, in substance, said:

“One of the safe rules in ascertaining whether the evidence prejudiced appellant is the question: Did the evidence in any sense strengthen the state’s case?” If it did not, it would not present reversible error. Knight v. State, 64 Tex. Cr. R. 552, 144 S. W. 973.

This has so many times been held, and in such a variety of cases, that it would practically be impossible to cite all of the cases so holding' and wherein this court has refused to reverse, and á waste of time. However, we will cite some of the other cases so holding. Coleman v. State, 53 Tex. Cr. R. 581, 111 S. W. 1011; Arnwine v. State, 54 Tex. Cr. R. 218, 114 S. W. 796; Underwood v. State, 55 Tex. Cr. R. 605, 117 S. W. 809; Boyd v. State, 57 Tex. Cr. R. 250, 122 S. W. 393; Ray v. State, 60 Tex. Cr. R. 138, 131 S. W. 542; Gray v. State, 61 Tex. Cr. R. 454, 135 S. W. 1179; Leggett v. State, 62 Tex. Cr. R. 101, 136 S. W. 784; Sparks v. State, 64 Tex. Cr. R. 611, 142 S. W. 1183; Davis v. State, 68 Tex. Cr. R. 261, 151 S. W. 313 ; Moore v. State, 65 Tex. Cr. R. 461, 144 S. W. 598; Thompson v. State, 70 Tex. Cr. R. 611, 157 S. W. 494; Bailey v. State, 65 Tex. Cr. R. 11, 144 S. W. 996; Cameron v. State, 69 Tex. Cr. R. 442, 153 S. W. 867; Douglas v. State, 73 Tex. Cr. R. 388, 165 S. W. 933.

Appellant’s objection to said letter being introduced in evidence is specifically stated as: (1) That it was wholly “irrelevant and immaterial.” (2) It did “not prove, or tend to prove, any issue in this case.” Surely, if these objections are true, then the admission of said letter, under the authorities, should in no event result in reversal. (3) His third and only other objection is that “it was highly prejudicial to his rights.” How it was prejudicial is in no way intimated by the bill. It did not tend in the slightest under his theory to prove him guilty of the offense. And the only effect it could possibly have had would have been to have caused the jury to fix his punishment at greater than the least, but, as shown, the jury fixed his punishment at the lowest prescribed by law. Hence the conclusion is certain and inevitable that he was not prejudiced thereby, and no injury resulted to him.

Appellant still contends that he established an alibi; that he was in Ft. Worth on the Friday night when his insured building was burned. It is true he so testified, and he further testified that he did not burn his building, and that he was not in Henrietta when it was burned. Even if he did so testify, the jury did not have to‘ believe him, and unquestionably did not believe him. He had told so many falsehoods as to his whereabouts and various other material matters connected with the insurance of his said burned building, which were unquestionably shown to have been false and some so admitted by him on the stand, that it is no wonder that a jury would not believe him. Under the facts, they should not have believed him. The court gave a correct charge on alibi in his favor. There is no complaint whatever to this charge.

As to his claim that he was in Ft. Worth when his building was burned, he attempted to prove by only two witnesses that he was there at the time. These two witnesses were Sister St. Dennis and the priest, Rev. E. J. Cussen. Of course, we cannot copy the whole of the testimony of either of these witnesses, but we think no one can read their testimony and for a moment doubt that, upon the whole, neither testified that he was at Ft. Worth when 'his building was burned, when their whole testimony is considered.

Sister St. Dennis swore that appellant was at the St. Joseph’s Infirmai'y at Ft. Worth, on the 7th of October, and that he was there also on the 11th of October. She swore:

“He was there some time during the week; I could not tell you the date.” “I cannot tell this jury the date on which he was there.”

On cross-examination, she swore that he was there on October líth. “I don’t remember the date he was there before that.” (Statement of Facts, p. 166.)

Rev. Mr. Oussen was examined with reference to trying to fix .the time that appellant was at said infirmary and tried to show that he was there on the evening and early part of the night of October 9th, the night the house was burned; but nowhere in his direct testimony does he specifically state that he was there at that time. On cross-examination (page 168, Statement of Facts) he swore:

“I have not got an idea where Father Kline was on the night of October the 8th. I don’t know whether he was in Fort Worth or Bowie on the night of October 8th. * * * ”

It is true that, in his further cross-examination, he stated in substance that he believed lie was there on the evening and early night of October 9th, but at the wind-up and conclusion of his whole testimony on cross-examination he swore:

“He (appellant) was there Wednesday night, and he went to Dallas Thursday morning; at least, he told me he went to Dallas. He came back, but I cannot say where he came from. He told me he was going to Dallas Thursday morning. I have said that time and again. He did not come back from Dallas or the place where he went on that same day, October 8th. He didn’t stop at the St. Joseph’s Infirmary on the night of October 8th, to the best of my belief, but he did stay the night of the 7th, or Wednesday night, and the next time he stayed there was on the night of the 11th.” (S. of F. p. 170).

Appellant swore he went to Dallas late in the evening of October 8th, and not in the morning, and returned to Ft. Worth from Dallas, and stayed at St. Joseph’s Infirmary in Ft. Worth that night (the night of the 8th), and all the next day and until after supper, and left on the 9:30 train.

No other witness was offered or testified that he was at Ft. Worth on October 9th at any time, day or night.

Now, let us see what the state proved as to his whereabouts on the night of October 8th, the early morning of October 9th, about the middle of the evening on October 9th, and at night, October 9th.

Mr. Devoss, the ticket agent of the Rock Island Railroad at Dallas, swore that, on October 8th, as such agent, he sold to appellant a railroad ticket over the Rock Island from Dallas to Bridgeport, on his stub No. 40, which appellant swore he signed for that ticket. They were produced, and .the stub and the ticket both identified and introduced in evidence. Appellant swore that he bought that ticket late in the evening of October 8th. The train left Dallas for Bridgeport at 7:50 that evening or night. Mr. Black, tho ticket agent at Bridgeport' for the Rock Island, swore that that Dallas 7:50 train arrived at Bridgeport at 10:45 at night. The state produced, and Mr. Black identified, appellant’s stub No. 41 and a ticket from Bridgeport to Bowie, which unmistakably shows was purchased at Bridgeport by appellant that night. He swore that he signed the said stub applying for the ticket. The Rock Island Railroad crossed the Ft. Worth & Denver Railroad at Bowie. It did not run to Henrietta from Bowie, but the Ft. Worth & Denver did. Mr. Stephenson, the ticket agent of the Ft, Worth & Denver at Bowie, swore that, on the night of October 8th, after midnight, which would be on the morning of October 9th, he sold to appellant a ticket from Bowie to Henrietta ; that the train from Bowie to Henrietta left Bowie at 1:55 in the morning, after midnight; and that it would reach Henrietta about one hour later. The state produced, and the witness identified, appellant’s stub No. 42 for said ticket from Bowie to Henrietta, and appellant swore that he signed that stub for that ticket. The state introduced the train conductors, or ticket auditors, who took up tickets from passengers on the train, and other trainmen, and, without reciting the testimony of these respective witnesses, it shows with all reasonable certainty that appellant traveled on said tickets procured by his clergy certificates Nos. 40, 41, and 42 from Dallas to Henrietta on the night of October 8th, reaching Henrietta about 3 o’clock on the morning of October 9th.

This evidence links up and with certainty shows that appellant left Dallas for Henrietta at 7:50 on the night of October 8th; that he reached Bridgeport at 10:45 that night; and that, upon his arrival there, he bought a ticket from Bridgeport to Bowie and continued on that train from Bridgeport to Bowie, arriving at Bowie about an hour later;. that he then and there bought a ticket at Bowie for Henrietta, took the train leaving Bowie at 1:55 a. m.', and arrived at Henrietta the next morning, the morning of October 9th, at about 3 a. m., some hours before daylight. There can be no question that he then slipped to his home in Henrietta in the dead hours of the night.

Mrs. Flannigan, a resident of Henrietta, and who lived between appellant’s residence and said sehoolhouse which was burned that night, swore that she had known appellant for some time; that she saw him pass her house going towards said sehoolhouse about 2:30 or 3 o’clock the evening the house was burned that night. She swore:

“I am familiar with his figure and personal appearance. I was very sure that I saw Father Kline in Henrietta on the day that the schoolhouse was burned. I saw him go by the house (her house), and then in the evening, about supper time, I went to close the door (the door of her house). I won’t say — I don’t think it was an-hour or more than an hour, perhaps in half an hour, before the fire, that I taken it to be him that passed our.door on the sidewalk. He was going towards the building, the sehoolhouse building.”

She then shows that her front door was only 25 or 30 feet from the sidewalk where she saw appellant passing. She swore:

“I just watched him until he got up to the next street. I could not say how far that was; and I went back in the house.”

On cross-examination, her testimony may have been somewhat weakened by the appellant’s skillful attorneys having her testify that she might be mistaken in swearing that it was appellant that she saw on these two occasions. . On redirect examination, she swore:

“I recognized the party that I saw about 2:30 or 3 o’clock on the day the house was burned to be Father Kline, also that night; though, as I' said before, any one might be mistaken after night, seeing him. But I was so sure it was Father Kline, because he had passed our house so many times, and 'because I had saw him so many times. I think I could not be mistaken, and for that reason I said it was Father Kline.”

On recross-examination, she said:

“I say that any one. could be mistaken, but I was so sure I recognized him was the reason I had spoke about it. * *■ * I saw. the side of his face on these occasions.”

The testimony unquestionably shows that there was a night train on the Missouri, Kansas & Texas Railroad from -Henrietta to Ringgold, a distance of about 16 miles. Ring-gold is where the Rock Island and Missouri, Kansas & Texas cross. Appellant turned up at Ringgold on the morning of October 10th. There can be no question but that the jury were clearly authorized to believe from all the facts that, after appellant burned his house at Henrietta on the early part of the night of October 9th, if he did, he, that night, took the night train on the Katy, or some other method of transportation,' and went from Henrietta to Ringgold, where he turned up the next morning.

Appellant attempted to prove that he arrived at Bridgeport from Dallas or Ft. Worth on the night of October the 9th on said train, which reached there at 10:45 at night, and that he remained there at Mr. Cage’s hotel that night and went to Ringgold on the Rock Island the next morning, whereby he attempted to account for his being at Ringgold on the morning of October 10th. He testified that in effect. He attempted to establish that he arrived at Bridgeport at 10:45 on the night of October 9th, and remained there that night, by Mr. Cage, the hotel man, and his wife, and Mir. McDaniel, who ran a restaurant and coffee stand. He attempted to show by Mr. Cage that he was there on the night of October 9th, by showing that the Sunday following he (appellant) attended the funeral ceremony of a child who had died there, and superficially Mr. Cage’s testimony on direct examination might apparently have that tendency; but on cross-examination he swore that appellant did stay all night with him some Friday night and was there the next day and stayed also the following Saturday night,-and that on Sunday following he attended the funeral of a child, but he could not be certain as to the time. He swore:

“I cannot tell this jury the date upon which that child’s funeral was held. I don’t tell this jury whether it was Sunday, October 11th, or Sunday a week later, or a week earlier. I don’t know anything about that, only I heard the child was buried. I don’t know the date. I don’t know what day the child was buried, and, consequently, I don’t know what date Father Kline was at my place at that time.”

Mrs. Cage’s testimony was more uncertain than that of Mr. Cage as to the particular time when appellant was there. Mr. McDaniel, the restaurant man, from whom appellant claimed to have bought a cup of coffee after his arrival at Bridgeport at 10:45 at night on October 9th, swore that he could not tell the date on which Father Kline got a cup of coffee at his restaurant. He swore:

“I do not know the night of the week or the night of the month. * * * I could not tell you how long it was before the funeral that Father Kline was in my restaurant drinking that coffee.”

Taking the testimony of these witnesses, separately or together, it utterly fails to fix the time that appellant was at Bridgeport drinking the coffee and staying all night at the hotel as the night of October 9th. Any one reading and studying the testimony would come to the conclusion that it was not on that night, but that it was either the week before or the week after; and, especially, when taken in connection with the tickets and stubs, which do not lie, but speak the truth, there can be no question but that he did not stop off at Bridgeport on the night of October 9th and remain there that night, but that it was some other night when he did this. It is also a very significant fact that he bought no ticket from Bridgeport to Ringgold on the morning of October 10th, but did buy and use one from Ringgold to Bridgeport on said morning. The stubs and tickets clearly show this.

It is wholly unnecessary to discuss the testimony of the whereabouts of the appellant on Tuesday night, October 6th, when the first attempt was made to bum his building. Probably he is then shown to have been at Wichita Falls. It is a significant fact, however, that, while he testified that at the instance of one of the insurance companies he had agreed and in fact did have a watchman, who was his cousin, for his said school building, he was not accounted for and was not produced and his evidence introduced by appellant on this trial. The jury could well conclude from all the facts that he was instrumental in having some one else to attempt to burn the house on Tuesday night, when he could establish an alibi; but, as that effort failed, that he himself after-wards, on the Friday night following, undertook the job himself and succeeded in burning it in order to get $10,500 insurance on an old schoolhouse that was worth not exceeding $2,500 or $3,500 at the very outside, including the more than two blocks of ground on which it was situated. But whether he had anything to do with the attempt to burn his house on the night of the 6th of October has nothing to do with the facts which show the burning on the night of October 9th, and he may have been entirely innocent of any connection with said previous attempt.

There are many inconsistencies and contradictions in his own testimony on cross-examination. Thus, at one place he testified:

“I might have bought a ticket from Bridgeport to Bowie on October 8th. I might have done that. I might have run up — I tell this jury that I might have run up to Bowie on October 8th from Bridgeport.”

In another place, in testifying about the signed stub by him No. 41 and the ticket from Bridgeport to Bowie procured thereby, he said:

“I might have taken the evening (train) if the ticket is there. Tes, sir; I think I have gone up to Bridgeport. I have a definite recollection of going from Bridgeport to Bowie on October Sth and purchasing a ticket from Bridgeport to Bowie on October 8th. I might have taken that 10:45 train from Bridgeport to Bowie on October 8th in the evening. That would bring me into Bowie about 11:30 or 11:40 that night.” (S. of F. p. 137.)

It is true that he claimed that, if he did that, he went back to Ft. Worth that night and reached there early the next morning before day, all of which from his own statement is wholly unreasonable, and expressly disputed by his stubs and tickets. Again, he said:

“Here is a ticket here and a credential ticket from Bowie to Henrietta dated October 9th, No. 42. It is possibje that I bought that ticket in Bowie on October 9th. If I went up there, I possibly did. I think that would be the evening of October 8th.” (S. of F. p. 139.)

Again, he said:

“The reason why I bought a ticket at Bowie on the night of October 8th, or morning of October 9th, to Henrietta was, well, with the intention, I suppose, of coming to Henrietta, but I found that I did — I thought, what is the use of coming up to Henrietta. I have nothing to do there. I might as well go back to Ft. Worth, and I was to be at Bridgeport Sunday anyhow. I changed my mind.” (S. of F. p. 140.)

It is a very significant fact that he did not buy nor use any ticket that night from Bowie back to Ft. Worth, for his stubs show the next ticket he bought was on the morning of October 10th, from Ringgold to Bridgeport.

No statement of any of the testimony, or the inference to be clearly drawn therefrom, in the original opinion, was placed therein because of any inadvertence. They are based unquestionably on the testimony introduced on this trial, after a most thorough and careful study of it. The testimony about what he paid for the old schoolhouse, what he is shown to have stated was its value, with the changes that he had made on it and the value with the improvements placed on it, was an accurate statement from the testimony itself, and not a single statement in the original opinion in that connection hut which was borne out strictly hy the testimony. Mr. Squires swore positively that appellant did not make any representations whatever to him at the time he issued the -$2,500 policy that there was any other insurance upon the building, and that he knew nothing about any additional insurance on the building until months after the fire, and learned that from another, and not from appellant. The policy that Mr. Squires issued was dated on March 1, 1913. The $3,000 and $5,000' policies issued by the Catholic Mutual Relief Society were not issued until Mlareh 19, 1913. It is true that appellant swore that he did tell Mr. Squires, at the time Squires issued his $2,500 policy, that he had this other insurance of $3,000 and $5,000. The policy Squires issued was issued and dated on March 1, 1913. The said two policies of $3,000 and $5,000 issued by said relief society were not issued and dated until 19 days later, March 19, 1913. (S. of F. p. 206.)

There is nothing else necessary to be discussed as to appellant’s motion for rehearing.

It is overruled.

DAVIDSON, J., not present at consultation.

HARPER, J.

(concurring). I have very thoughtfully studied this record, and deeming the letters dated August 17, 1914, and January 15, 1915, inadmissible, I have been at some difficulty in arriving at a conclusion in the premises. The court, in his qualification to the bills, says the only objections offered were made when the district attorney was cross-examining appellant in regard to these two and the other letters in evidence; that subsequently counsel for appellant offered, at least, the letters bearing on the expenditures, and after this the district attorney read all the letters, including the above two, and no objection was made at that time by appellant to the introduction of these two letters. If the bills showed that an objection was then made, we might feel inclined to sustain appellant’s contention; but the court says none was then made, and, as appellant accepted the bills as thus qualified, we must so conclude, and under such circumstances the objection made at the time of cross-examination could not be made to relate to the time when later they were read to the jury without objection.

Another matter to which the writer has not heretofore, and cannot now, give his full concurrence is that if the letters were inadmissible as appellant received the lowest punishment, their introduction over objection would not be ground for reversal. The letters themselves could not and would not have any tendency to show that appellant burned the house, but the language in the letters might prejudice a Protestant jury against appellant, and, if so, they would give but little credence to his testimony, and upon his testimony he relied to create at least a doubt in the minds of the jury as to his guilt. However, the writer’s views have not heretofore prevailed, and he believes in one rule of law for all. In the case of Miller v. State, from Travis county, decided last week, the court in the opinion admitted the testimony in that case was improperly admitted, and that it was prejudicial, but, inasmuch as the jury assessed the lowest penalty, they would not disturb the verdict. The writer dissented most vigorously, but if that is to be the rule of decision in this court, if the objection had been urged when the letters were offered in evidence (which the court says was not done), the error would not be reversible, as appellant received the minimum punishment. See Miller v. State, recently decided, and authorities cited. Under the rule in that case, this case should also be affirmed, considering the bills as ample to present the question.

DAVIDSON, J.

(dissenting). The state relied, first, upon the fact that Mrs. Flannigan recognized, or thought she did, appellant in the town of Henrietta on the evening prior to the burning of the house at night. This recognition was not by his face, but by his general manner and dress, he being some distance from her walking along the street. The first time she recognized him was in the early evening, and the second time late in the evening. No other witness was produced who saw defendant or was aware of his presence in Henrietta, the town in which the house was burned. Her testimony was sought to be reinforced by circumstances growing out of railroad tickets which were used, or supposed to have been, by appellant, covering some days before and just after the alleged burning. It is unnecessary for what I have to say to enter into a statement of these different transactions. The state also sought to reinforce its side by showing appellant had made different statements as to his whereabouts on the night of the alleged burning of the house. There are explanations offered by him, and the main ticket used by the state, known as No. 42, in such a way that it amounted to hut little, if anything, as evidence to show his presence in Henrietta on that particular night. The changes on the ticket rendered it fully doubtful on the part of the conductor, who testified about taking up that ticket, as to whether he did in fact take it up that night, and whether appellant rode on his train that particular night. The state’s theory was that, if he rode on that particular ticket, he could have been in Henrietta on the morning of the 9th; the house being burned on the night of the 9th. Appellant met this by proving a complete alibi by various and sundry witnesses as well as by -his own testimony. Three witnesses, for instance, locate Mm at Ft. Worth, at the time of the alleged, burning, he leaving Ft. Worth about the hour or little before the house was burned at Henrietta-, and going thence to Bridgeport in Wise county on that night, reaching there about 10 o’clock. His presence at that place at that time was proved not only by himself but by other witnesses who lived in Bridgeport. I do not care to go into the details of the evidence.

While appellant, who is a Catholic priest, was being interrogated, letters were introduced by the state over the objection of appellant. There are several of these bills of exception, but one will be enough to illustrate what I have to say about it, known as bill of exceptions No. 1. It recites:

“Be it remembered that upon the trial of the above styled and numbered cause, and while the state of Texas, through her district attorney, was offering the testimony in chief upon the trial of said cause, the district’ attorney offered in evidence the following letter, to wit: ‘Henrietta, Tex., August 17, 1914. Mr. C. W. Martin, Omaha, Neb. — Dear Sir: Inclosed you will find a check, $25.00, the balance due on the insurance policy of our school. I have had great difficulty with our school in order to get it on a running basis, and hope by the first of November to be able to have a good little school for our children. I have a great obstacle to contend with, or we few Catholics have here, as we are surrounded by Protestant bigots and they seem to hate a Catholic school, and have done all in their power to check us. However, I hope with God’s grace and help we will be able to overcome this prejudice. Thanking you for the favors you have extended us, and with best wishes, I am Fours in X D, Rev. Philip J. Kline. Henrietta, Texas, Box 273.’ (Ex. No. 45.)
“And thereupon, and at the time said letter was offered in evidence, the defendant’s counsel then and there in open court objected to the in-, troduetion of said letter, and especially that part which reads as follows:. T have a great obstacle to contend with, or we few Catholics have here, as we are surrounded by Protestant bigots and they seem to hate a Catholic school, and have done all in their power to check us.’ First, because the same was wholly irrelevant, and immaterial. Second, because said lfetter did not prove, or tend to prove, any issue in this case. Third, because the same was highly prejudicial to the rights of the defendant. And the court overruled each and all of said objections, and permitted the district attorney to read in evidence and in the presence and hearing of the jury trying this said cause, said letter. To which action and ruling-of the court in overruling said objections and permitting said letter to be read to and in the presence and hearing of the jury trying this said cause, the defendant then and there in open court duly and legally excepted, and here now tenders this his bill of exceptions No. 1, and asks that the same be approved, signed, and ordered filed as a part of the record herein.”

TMs bill of exceptions is thus qualified by the court:

“The objections urged in this bill were made at the time the district attorney was reading said letter to the defendant on cross-examination, while said defendant was testifying in his own behalf, and 'before said letter had been offered in evidence by the state. Before said letters, including this one, was offered in evidence, the following proceedings were had, while the defendant was still testifying in his own behalf on redirect examination by Hon. R. E. Taylor, attorney for defendant: Mr. Taylor, after interrogating- the defendant about the amount of improvements he had placed on the burned building, asked the following questions: Q. State whether or not you now say, since you have gone over and read these letters, about what you would say was the amount of money, in the aggregate, that you spent on this building. A. I would figure 'between $2,500- and $3,000. Mr. Taylor: I want to offer in evidence the letters you read here.”

Here the court further stated:

“It is claimed by counsel for defendant that this offer was made for the purpose of showing his expenditures on the building only; and I accept his version of his offer.
“Said letters, including the one here in question, were thereupon offered in evidence, and read to the jury by district attorney.
“This qualification applies also to all the other letters introduced.”

The grounds of objections urged in the bill, as will be seen from an inspection of it, and especially to that part of it which reads as follows, “I have a great obstacle to contend with, or we few Catholics have here, as we are surrounded by Protestant bigots and they seem to hate a Catholic school, and have done all in their power to check us,” are: First, the same was wholly irrelevant and immaterial; second, said letter did not prove or tend to prove any issue in this case; third, the same was highly prejudicial to the rights of the defendant. I have set out the bill fully so that the matters can be seen as verified in the bill.

The bill of exceptions was disposed of in the opinion mainly upon the ground that it was wholly insufficient to present the issue, and that it did not sufficiently state the matters to authorize a consideration of.the bill. To this I cannot agree. Usually when the grounds of objection state that it was irrelevant and immaterial, it may be considered in the light of a general demurrer; and, if in the light of such objection the testimony is admissible for any purpose, the objection might not be sufficient. But if the evidence was not admissible for any purpose on the trial, -then the general demurrer is sufficient. It is useless to cite authorities, I think, upon this proposition; but I will cite Branch’s Crim. Law, §§ 45, 46, and 49. On the second proposition, that it did not prove or tend to prove any issue in the case, it will only be considered in the light of the bill itself. If this objection is'well taken to the matters set forth in the bill itself, it would be sufficient. Whatever may be contained in thé bill, if “upon an inspection of it it does not prove or' tend to prove any issuable fact, then such objection is sufficient. Taking the bill as it is presented, I do not understand h'ow the fact that this letter contained the, expressions referred to, that he was surrounded by Protestant bigots, or the Catholics of the'town were surrounded by Protestant bigots, could possibly prove any issue in a case of burning a house for the insurance on it, so far as appellant is concerned. I believe this exception is good under the state-merits of the bill itself. As to the third ground, it will not be questioned the letter •was of a very prejudicial nature. As a general proposition, a bill should be sufficiently full and certain in its statements so that in and of itself it will disclose what" is necessary to show the supposed error. "Mr. Branch collates numerous authorities in section 45 of his Criminal Law supporting this proposH tion. In section 46 of his Criminal Law-, he condenses the law forcefully that bills of exception to testimony will not be held defective for failure to state what objection was made, if the testimony is obviously hurtful and inadmissible for any purpose, citing Bell v. State, 2 Tex. App. 220, 28 Am. Rep. 429; Guajardo v. State, 24 Tex. Cr. App. 605, 7 S. W. 331; Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 565; Tyson v. State, 14 Tex. App. 391. Objection to evidence admitted, that it was immaterial and irrelevant, is too general to be considered unless obviously the evidence would not be admissible for any purpose. He cites a great number of cases, commencing with McGrath v. State, 35 Tex. Cr. R. 422, 34 S. W. 127, 941, down to and including Lamb v. State, 55 Tex. Cr. R. 325, 116 S. W. 588.

Sometimes a' statement of facts .will belooked to in aid of a bill of exceptions, but that phase of it is not here discussed. Some cases deal with the question as to whether or not the bills are sufficient, and in this connection authorize a reference to the statement of facts to explain, verify, or make plain the difference between the bill of exceptions as given by the court and that taken by bystanders. This bill was not taken by bystanders, but was given by the court and qualified as above stated. The court certified the statement that the defendant offered certain letters which speak of the amount of improvements put upon the property by appellant. This letter had nothing to do with that matter and in no way referred to expenses, as do some of the letters mentioned in bills of exception. But it will be noted that appellant did not read any of th'e letters to the jury; he simply offered them as stated. If the bill of exceptions had shown they were offered, but failed to show they were read in evidence before the jury, the bill of exceptions would not have been sufficient to show that they were introduced. The authorities are clear upon that proposition, at least since Burke v. State, 25 Tex. App. 172, 7 S. W. 873. Th'e court in his qualification says defendant offered no letters but those which referred to the amount of improvements placed upon the property by appellant. These appellant did not introduce in evidence. This letter does not refer to those and had nothing to do with them. The judge certified that fact. That this testimony was damaging and hurtful would hardly be a question or subject of debate. It was not withdrawn from the jury; therefore -no question- is presented from that standpoint vel non: The writer has heretofore stated, and now states, that he has not been in harmony with his Associates upon the question of explicitness in ■ bills of exception. His view is, and has been, if a bill is sufficient to present the supposed error so the court may understand the proposition asserted in it and can pass upon it, that the bill is sufficient, and that -it is not necessary to repeat all the evidence which explains in detail the particular point. It is the opinion of the writer that this bill of exceptions is amply sufficient and full to show and manifest that the testimony introduced in the letter which is set out was not authorized. It had no application whatever to any improvements made by appellant upon the property, but was merely intended to get before the jury, and did get before them the prejudicial matter, that he was surrounded by what he termed “Protestant bigots,” or the few Catholics who were there were so surrounded. That this could find no place in the trial of this case ought not to be debatable.

I want to say further that, whatever may have been the old rule with reference to the explicitness of a bill of exceptions, before the Legislature enacted what is known as the stenographer’s law, ought not now to obtain. Prior to that time, the lawyers of the case made up the statement of facts from memory without stenographic aid. The Legislature has provided that a stenographer ■ shall be employed-and sworn as an officer of the court, that he shall be fully qualified, and that he shall take down everything that occurs during the trial and make a transcript of the matters occurring on the trial. In this case the stenographer did so. He certifies at the end of the transcript that this was a correct statement of facts and matters occurring on the trial. The judge so certifies, and the attorneys on both' sides so agree. The writer wishes to emphasize the fact where now under this stenographer’s law these matters occur,, that wherever the stenographic report is signed and approved by the judge and the attorneys in the ease, and verified by the stenographer, its contents should not be permitted to be contradicted by the qualification to a bill of exceptions. If the bill of exceptions is not sufficient, it may be that it would be proper to qualify the bill so as to make the matter plain, but that qualification, whatever it may be, must be in accordance with the stenographic report of the trial made by the sworn officer, and especially so when that record is approved by the court and th'e attorneys on both sides. So from any viewpoint, the writer is of the opinion that this bill is amply sufficient to manifest error, and the objections are sufficient. So far as this bill is concerned, we need go no further than the face of the bill itself. It is not necessary to go to the stenographic report to ascertain this fact.

In this connection, I desire to say further that two propositions ought not to be controverted, or at least seem to be well-settled: That where the errors complained of conduce to bring about an erroneous conviction, or concede the guilt of the party, that it brought an enhanced punishment, it is reversible. In the attitude of this testimony and the more than serious doubt as to whether the defendant was in town at the time of the burning, but that he was in Ft. Worth, or en route to Bridgeport, this character of testimony contained in this and some of the other letters is of sufficient importance to turn the jury against appellant. It was not withdrawn, but remained with' and was considered by the jury. In this connection, one other fact I desire to state. This house was burned on the night of the 9th, about dusk or dark, which was Friday. On the previous Tuesday the same house was set on fire by somebody. This was a Catholic schoolhouse in Henrietta. It was proved beyond question, if not a conceded fact, that appellant was not in Henrietta on Tuesday night when the house was first sought to be burned, but was in Wichita Falls. It was a serious question, met by evidence both ways, that he did not return to Henrietta until after the second burning, and therefore could not have been guilty of the second burning. Some one else set the house on fire the first time. It was not defendant. This character of testimony set forth in this letter may have induced the jury to find appellant guilty. We cannot tell, in cases of this character, just what may or may not influence a jury. From any viewpoint, this testimony was clearly inadmissible, and the writer believes that the bill of exceptions is ample under the authorities, and especially under th'e present law, to manifest error without reference to the statement of facts. If we were permitted to go to the statement of facts, it would not show the defendant even offered any of these letters in evidence, but the state did, and it is shown by the bill of exceptions it was introduced by the state as original evidence. The bill of exceptions shows the state of Texas was offering this testimony in chief on the trial of the case and this letter was read as evidence.

It is unnecessary to discuss the other letters, in view of what has been stated. They are signed by the judge and qualified in the same manner as was the bill already discussed.

I cannot agree altogether with the statement made as to some of the evidence introduced. As I understand the original opinion, it indicates that the evidence shows that the property at the time of the alleged burning was only worth $2,500. I think this was an inadvertence. I think the testimony will show conclusively that at th'e time appellant bought it it was worth $2,500, and the witness does not state what it was worth at the time appellant offered to sell him the property, but stated that quite a lot of improvements had been made on the building after purchase in order to make it suitable for a school building, and appellant offered a state’s witness the property at the time for $6,000 or $6,600; appellant stating, also, at the time he was willing to make some sacrifice on it This was a physician who was speaking of buying it for some purpose connected with his practice, but the trade was not consummated.

At the time the insurance was granted through the county insurance agent, Mr. Squires, Squires testified that appellant did not inform him that he had taken out insurance in another company. Appellant says he did so inform him, and told him the name of the company and incidental matters, and this in the presence of Mr. "VVantland. So it was not a conceded fact, but a decidedly contested issue, as to whether appellant did or did not make the statement to Squires at the time he took out the insurance in th'e company represented by Mr. Squires. Wantland was not introduced as a witness. Therefore we have got the issue between the testimony of Squires and that of appellant as to this matter. I do not care to pursue this matter further. I am of the opinion upon a review of the case and reading of the record, bills of exception, and statement of facts, that these matters were of such an erroneous nature as requires a reversal of th'e judgment and awarding appellant another hearing before a jury. To this end, I believe the affirmance should not have occurred, the rehearing ought to be granted, and the judgment reversed.
      ■©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    ROGERS v. STATE.
    (No. 4030.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.)
    Cbiminal Law <&wkey;1000(l) — Appeal—Statement op Facts — Bills op Exception — Necessity.
    In the absence of statement of facts and bills of exception, nothing is presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2805; Dec. Dig. &wkey;>1090(l).]
    Appeal from District Court, MeLennanl County; Richard I. Munroe, Judge.
    Harry Rogers was convicted of forgery, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction of forgery, with no statement of facts nor bills of exceptions, in the absence of which, nothing is raised which can be reviewed.

The judgment is therefore affirmed.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    MURRELL v. STATE.
    (No. 3844.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    On Motion for Rehearing, April 19, 1916.)
    1. Criminal Law <&wkey;1128(l) — Appeal-Record — Matters Occurring After Term.
    A record in criminal proceedings cannot be varied or qualified by matters occurring after the adjournment of court.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2951; Dec. Dig. &wkey;1128(l).]
    2. Criminal Law <&wkey;598(3) — Continuance-Diligence.
    Where accused, instead of sending interrogatories to an officer authorized to take depositions, mailed them to the postmaster of the town where witness resided, with the request that the postmaster deliver them to an officer authorized to take depositions, and sent no money to pay for taking the depositions, he did not use diligence to secure the testimony^ and he is not entitled to a continuance to obtain it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1336; Dec. Dig. &wkey;598(3).]
    3. Seduction &wkey;>34^CRiMiNAL Liability — Elements op Oppense.
    To constitute the offense of seduction, it is not necessary that prosecutrix must have yielded solely in reliance on the promise of marriage, and not partly through love for the accused.
    [Ed. Note. — Eor other cases, see Seduction, Cent. Dig. §§ 58-60; Dec. Dig. <&wkey;>34.]
    4. Criminal Law <&wkey;789(l) — Trial — Instructions — Reasonable Doubt.
    An instruction held to clearly apply the rule of reasonable doubt in favor of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904, 1905, 1960, 1967; Dee. Dig. &wkey;789(l).]
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Baity Murrell was convicted of seduction, and appeals.
    Affirmed.
    Mears & Watkins, of Gatesville, and Williams & Williams, of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of seduction, and his punishment assessed at two years’ confinement in the penitentiary.

The first contention of appellant is that the court erred in overruling his motion for a continuance. In this motion he states he expects to prove by Sherman Hale that on one occasion he slept with the prosecutrix, Miss Mary Hale, and during said night had sexual intercourse with Miss Hale, and had had intercourse with her on various occasions prior to the time of the alleged seduction. The materiality of such testimony in this character of case cannot and will not be questioned. The court, in approving the bill, attaches the affidavit of Sherman Hale to his qualification of the bill, in which Sherman Hale swears that appellant could not make such proof by him; that he never at any time slept with Miss Mary Hale, and had never at any time had sexual intercourse with her; but he says, on the other hand, not only that such proof could not be made by him, but that Miss Mary Hale’s reputation for virtue and chastity is good. This affidavit was made after the adjournment of court for the term, and appellant’s insistence that we cannot consider same is correct. Such an affidavit would have been admissible when the hearing on the motion for' a new trial was had, but a record cannot be varied nor qualified by matters occurring after the adjournment of court.

So the only question is: Did appellant usé diligence in an effort to secure the attendance of the witness? If he did, he would be entitled to a reversal of the case. If not, the court committed no error in overruling the motion for a continuance and refusing to grant a new trial on that ground. Sherman Hale had lived in Coryell county a number of years, but moved from that county to Oklahoma in November, 1914. A complaint was filed against appellant in May, 1915, charging him with having seduced Miss Hale in December, 1914. He was bound over to the grand jury, and when that body met he was indicted, and his cause" set for trial on the 26th day of July, 1915. Appellant, prior to that time, and after indictment, had a subpoena issued to Coryell county for Sherman Hale. The least diligence on his part would have ascertained that Sherman Hale had left Coryell county for Poteau, Okl., some six months prior to that time. However, when the case was called on the 26th of July, on motion of appellant the case was postponed for one week-to give appellant an opportunity to take the depositions of the witness. He propounded interrogatories, time was waived by the district attorney, and he agreed that the depositions might be taken in answer to the original interrogatories by any officer authorized to take depositions. Appellant, instead of sending the interrogatories' to an officer authorized to take depositions, mailed them to the postmaster at Poteau, Okl., with the request that the postmaster deliver them to an officer authorized to take depositions. No answers to the depositions were received, and it is not shown they were ever delivered to an officer authorized to take depositions. The postmaster was under no obligations to hunt up such an officer, and appellant admits he sent no money to pay for taking such depositions.

Was this diligence? There is no showing made that an officer authorized by law to take such depositions lived in Poteau, Okl., and as only a judge of the Supreme Court of that state, or a commissioner of deeds for this state who resides' in Oklahoma, could take such depositions (Poteau not being the capital of that state), it is hardly probable such an officer lived in Poteau, and, if not, could appellant reasonably expect the postmaster of Poteau to loot up such an officer and turn over the depositions to him, when no money was sent with which to pay for taking the depositions, or to pay the expenses of the postmaster. In Adams v. State, 19 Tex. App. 260, it is held by this court that, notwithstanding the waiver of the district attorney, the affidavit required by law in taking such depositions must be filed, or the appellant will be lacking in diligence. This question is also discussed in Swofford v. State, 3 Tex. App. 82, and holds appellant lacking in diligence for not placing the depositions in the hands of an officer authorized to take the depositions. All the decisions of this court hold that it is not only the duty of appellant to sue out the process, but it is his duty to place it in the hands of an officer who is authorized to execute the process. Dove v. State, 36 Tex. Cr. R. 107, 35 S. W. 648, and cases cited in section 601, page 395, White’s Ann. Code Cr. Proc. As the application does not show that the depositions had been placed, or that the postmaster ever would place them, in the hands of an officer authorized to take the- depositions of the witness, the court did not err in overruling the application for a continuance.

Again, if we consider the evidence heard on the trial of the case, which in ruling on the motion for a new trial the court had a right to consider, this evidence would show that Sherman Hale had a very limited acquaintance with Miss Mary Hale, and comparatively no association, and under such circumstances it would be remarkable if the facts stated in the application were true, unless she was a prostitute, and this the testimony most emphatically negatives, for the record discloses that her reputation for virtue and chastity was good in the community where she lived prior to the date of this alleged seduction. And under such circumstances we cannot say the court would err in holding that the witness would not probably so testify if his depositions had been secured. Carver v. State, 36 Tex. Cr. R. 552, 38 S. W. 183, and subdivision 2 of section 643, White’s Ann. Code of Criminal Procedure.

The prosecutrix, Mary Hale, testified on the trial, in answer to questions:

“Q. What caused you to yield to him? A. Because I loved him, I reckon. Q. What did you say? A. Because I thought he loved me and would be true to me. Q. What, if anything, did the fact you were going to be married five days after that — state what effect did that have on you in allowing him to have intercourse with you? A. I thought he would be true to me. Q. Would you have yielded to him, but for the fact of his promise to marry you five days after that? A. No, sir.”

Appellant insists that the court should have instructed the jury, under this testimony, that if the prosecutrix yielded her person to appellant partly through love for appellant he was entitled to be acquitted. He contends that she must have yielded solely in reliance on the promise of marriage, and if her love for appellant was any part of her reasons for yielding it would not be seduction under our statute. We have frequently held that, if the act of intercourse took place in exchange for a promise of marriage, without evidence of association, love, and affection, it would be but a matter of barter and sale. Seduction necessarily implies that one has won the affection of the young lady and obtained her confidence. That he has done so would not, in and of itself, make a ease of seduction, as there must have been an engagement to marry upon which she had a right to rely. But without love and affection there could hardly be a case of seduction. It is the fact that one has won the love and confidence of a young lady, and by reason of such facts under a promise of marriage, he brings about her undoing, that renders him criminally liable. The court, in approving the bill, says:

“The proposition asserted by appellant is that, if prosecutrix yielded her virtue to appellant partly because she loved him and partly because he promised to marry her, appellant would not be guilty of seduction. If this is the law, then it would be hard to imagine how a case of seduction would arise. As I understand the law of seduction, it was intended to punish a man who would first win the love and confidence of a girl, and then by promise of marriage induce her to have intercourse with him, and then fail or refuse to carry out his promise of marriage. Necessarily, the first step in the offense is to win the love of the injured female, because it is her love for the man who promises to marry her that gives her faith in such a promise and causes her to rely upon it, and inspires confidence in the maker of such promise-and belief that he will carry it out.”

The court has a correct conception of the law, and he did not err in refusing to charge the jury as requested.

The next contention of appellant, as made by appellant in this court, is that the court erred in failing to apply the reasonable doubt to that paragraph of the charge of the court wherein his affirmative defense was presented. The record we have before us is not clear whether or not the court had or had not instructed the jury to give the appellant the benefit of a reasonable doubt on this issue. In approving the bill of exceptions the court inserted the paragraph on this issue in his qualification of the bill, and in it the reasonable doubt was applied to that, as well as all other issues. But, as appellant insisted this did not comport with the true facts, 'the court required the clerk to send us the original charge of the court, and in it we find the court thus instructed the jury on that issue:

“If you should find from the evidence that one Roebuck had carnal intercourse with Miss Mary Hale before the-defendant had intercourse with her, if he did do so, or that the defendant had intercourse with her without a promise of marriage before he had intercourse with her under a promise of marriage, if he did, or if you have a reasonable doubt thereof, then in that event you need consider the case no further, but will acquit the defendant.”

This clearly and succinctly applied the reasonable doubt to that issue and we cannot understand why appellant makes such contention, when the record discloses that the court so instructed at his request, and amended his charge in conformity with appellant’s objection thereto.

The only other contention is that the evidence is insufficient to sustain the verdict. Both appellant and the prosecutrix testify to acts of intercourse. She testifies to a promise of marriage. This he denies. The prosecutrix, however, is corroborated on this issue by Mrs. Maud Purmenter and other witnesses.

The judgment is affirmed.

On Motion for Rehearing.

The only question discussed in the application for a rehearing is the one relating to the motion for a continuance. One of counsel for appellant in his argument states:

“We cannot agree with the court that there was any duty of diligence incumbent on the defendant until after indictment.”

If there is any expression in the original opinion indicating such holding, it was not intended. His duty as to diligence to get his witnesses began when he was arrested on the indictment. Appellant says there is no question as to diligence up to July 26th. To this we cannot agree. In the application for a continuance appellant states:

“Defendant shows that he has learned that the witness [Sherman Hale] moved from this county to Oklahoma in September, 1914, hut he did not lenow his residence at the time he had a subpoena issued to this county.”

If appellant knew that Hale had left Oor-yell county at the time h'e had the subpoena issued to that county, even if he did not know his exact place of residence in Oklahoma, certainly causing a subpoena to issue would not be diligence, when he knew he had left the county nine months prior to the issuance of the subpoena, and gone to Oklahoma. The case would stand as if he had had no process issued, and no diligence used up to that time. It was his duty, instead of issuing a subpoena, to then make an effort to secure the depositions of the witness. However, the court did grant him a postponement of the ease from July 26th to August 2d. The district attorney that day waived notice and service and copy of the interrogatories, and agreed that commission might issue at once, and commission did issue on that day. It then became the duty of appellant to see that the interrogatories were placed in the hands of an officer authorized to take the depositions.

Appellant insists that we should take judicial notice of the difficulty of securing an officer to take depositions of a witness in a sister state. If we should take such notice, then appellant must also be construed to be in possession of the same information, and yet he made no effort to see that the interrogatories reached the hands of an officer authorized to take depositions. He had seven days. Poteau, Old., is not so distant but that the interrogatories could have been taken and returned in that time by diligence; at least, the duty to endeavor to do so was incumbent on him, and if he failed, after using due diligence, there would be merit in his contention. When this court was first organized it was held in Buie v. State, 1 Tex. App. 455:

“It has been repeatedly decided by this and the Supreme Court that it must be shown what was done with the process obtained for a witness; that it should be made to appear that it was placed in the hands of the proper officer if the witness resided in the county, and if he resided out of the county then that it was forwarded, and how and when, to the proper officer there.”

Appellant states in his application th'at when he had the subpoena issued to Coryell county he knew the witness had moved to Oklahoma. This was July 16th. For 10 days, or until July 26th, when the case was called for trial, he had made no effort to take th'e depositions of the witness. On this day the court granted a postponement until August 2d, that he might take the witness’ depositions. The district attorney waived notice and time, and a commission was issued on that date, and the showing that appellant makes is that he mailed the depositions to the postmaster, with the request that the postmaster turn the depositions over to an officer, sending no money to pay for taking the depositions. The commission never reached the hands of an officer authorized to take the depositions. See Dove v. State, 36 Tex. Cr. R. 105, 35 S. W. 648, and a long list of authorities cited in subdivision 2, § 600, White’s Ann. Code Cr. Proc.

The motion for rehearing is overruled.
      <g=?Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes