Bluman v. State , 33 Tex. Crim. 43 ( 1893 )

ON MOTION FOR REHEARING. Conviction for arson. Paul Kirschner and George B. Jones, as principals, and H. Bluman, as accomplice, were jointly indicted for the arson. The prosecution against Kirschner was pending, not having been nolle prosequied. Mrs. Emma Kirschner, over objections of appellant — he being on trial — was permitted to testify against him. Paul was also present and testified. The husband being indicted for the same offense, and the prosecution still pending, was his wife a competent witness against appellant? The Code has made no provision regarding this question; hence, the rules of evideuce known to the common law of England apply. Code Crim. Proc., art. 725. And, when ascertained, the rules of the common law are as binding on this court, and to the same extent, as if written in our Code or statutes. What, then, is the rule known to the common law of England? At common law, neither could be a witness for or against each other, except in certain cases not necessary to be mentioned here; and as our statute permits them to be witnesses for each other, the common law furnishes but little light on the question. The doctrine which should prevail under such statutes as ours is, that if the husband, being indicted for the same offense, is a competent witness, his wife is also. Whart. Crim. Ev., sec. 391. If the husband be on trial, the wife can be a witness for, but not against him. Code Crim. Proc., art. 735. If a codefendant be on trial, the one not on trial may be made a witness by the State; and then the witness' wife is a competent witness also. See Blackburn v. The Com., 12 Bush., 181; Ray v. The Com., Id., 397; The State v. Smith, 2 Ired., 402. In the Dill case, 1 Texas Criminal Appeals, 278, the record did not show but what Bell was on trial when his wife testified. Rex v. Smith, 1 Moody Cr. Cases, 289, and Rex v. Hood, Id., 281, do not support the position of appellant. The defendant proposed to use as a witness the wife of one of the defendants who was on trial, in behalf not of the husband, but his codefendant. This was not permitted. Why? Because her evidence might inure to the benefit of her husband. Rex v. Smith, supra. We are of opinion that Mrs. Kirschner was, under the circumstances of this case, a competent witness.

Paul Kirschner was an accomplice. This is conceded. His wife, Emma, was introduced as a witness for the State. She states: "A few days before the fire I heard a conversation in German between Paul Kirschner and Bluman. I came down stairs, and saw Bluman come in. I stepped back a little because I did not want him to see me. "He came in and said to my husband: 'I am ready for it to go off Sunday night, as the women are off.' They (her husband and Bluman) were talking about forty or fifty dollars." Under the circumstances of this case, if, indeed, appellant made these remarks to Kirschner, they would be very strong facts of his guilt. Kirschner makes out a clear case against appellant. But he confesses his guilt fully, is an accomplice, and must be corroborated. The corroboration is obtained from the evidence of Mrs. Kirschner, above stated. But counsel for appellant contend that the wife can not corroborate her husband. In the absence of a statute in this State, we are, by our statute, forced to the rules of evidence known to the common law of England. How stands the common law on this question In Rex v. Neal, 7 Car. P., 168, "the prisoners were indicted for stealing a sheet, the property of Alban Bull. It appeared that the stolen sheet was found in the house of William Brain, who was admitted king's evidence, and Brain gave evidence to show that the prisoners stole the sheet. Park, J.: What evidence have you, Mr. Walesby, to confirm the accomplice's statement? Walesby (for the prosecution): The wife of the accomplice. Park, J.: Have You no other confirmation? Walesby: No, my lord. Park, J.: Confirmation by the wife is, in a case like this, really no confirmation at all. The wife and the accomplice must be taken for one, for this purpose. The prisoners must be acquitted." We have examined the authorities accessible to us bearing upon this question. The Neal case seems to stand alone. Of this case Mr. Phillips observes "that its circumstances might have been such as to warrant this decision." "But it may often happen that the evidence of the wife is so free from suspicion, so independent of the evidence of the husband, so manifestly unconcerted and uncontrived, and so undesignedly corroborative of his evidence, that it might be proper not to consider the accomplice and his wife as one, but to Act upon her evidence as sufficiently corroborating." "The fact of the relationship, and the danger of marital domination on the part of the husband, go, it is true, largely to assail the credibility of the wife, but not to her competency; and the degree of weight which should be accorded to her testimony must be left to the jury. It may sometimes constitute very weak corroboration, yet it can not justly be said to be absolutely no corroboration at all. The case bears no Similitude to that of an accomplice, whose testimony it has been held, can not confirm that of another accomplice in the same crime." Woods v. The State, 76 Ala. 35.

Under the circumstances of this case the theory of the prosecution was, of necessity, that appellant burned the house to defraud the insurance companies. The accomplice swears to this motive, and the State sought, naturally, to corroborate him by the proof of circumstances tending to show motive. Judge Kirk was at the store while it was burning. He, while on the stand as a witness for the State, was asked these questions: "Did you make any effort to move goods from Bluman's store? Did you pick up any goods? And if you did not pick up any, state why not." "Defendant objected, because (1) it was irrelevant and immaterial; (2) because defendant was not present, and was not responsible for the acts of others or what others said. These objections were overruled, and the witness answered that when the fire was raging he and others broke one of the doors, and he, or some one of the crowd, gathered up an armful of clothing to take out; but some one — a stranger to him — remarked that Kessel told them not to take out the goods; that it might affect the recovery upon the insurance policies; and that the goods were thrown down and they all went out. Kessel, being on the stand as a witness for the State, was asked: "Did you tell Mr. J.S. Hillsman that night, when you were in the store, not to take any goods out of it?" Defendant objected, on the ground that the question was leading, immaterial, and that defendant was not present. The objections were overruled, and Kessel answered: "I don't remember if I did or not; I don't remember it. But if Mr. Hillsman said that I did, I will not dispute his word about it." Counsel for the State asked the witness the same question with reference to what he may have said to Judge Kirk, defendant making the same objections. The court overruled the same, and the witness made similar replies. B.C. Dodd, for the State, was asked: "Do you think that, if Bluman had tried, he could have saved any of his goods?" The defendant objected that the question called for the mere opinion of the witness; that witness was not present or in a position to judge what appellant could do. The objections were overruled. The State further asked the witness, "How many goods were saved out of the Harris house that night?" defendant objecting, because immaterial and irrelevant. The objection being overruled, the witness answered: "I should think there were probably seven or eight of us carried out five or six bundles of clothing apiece to the office of the lumber yard."

If Bluman instructed his clerk Kessel not to save any of his goods, this fact was evidence against him. If he did not, the acts and declarations of Kessel were not evidence. If Kessel had sworn that defendant had so instructed him, and Bluman had sworn he had not, what Kessel said to others was not evidence to corroborate him. (This by the way.) Had Bluman, by act or word, given Kessel such instructions? Bluman says that he had not. What says Kessel? I do not remember of Bluman telling me not to let anybody take out goods from the store." Kessel further states: "I carried two armfuls of clothing from the store in all. Bluman told me to save the best clothing. I saw Henry Jarman carry out one armful, but that is all. Bluman told me to save the best clothing. I saw Tom take one armful of pants; don't think he took any more. There was a keg about halffull of powder in the north room of the store. We had no oil. I told Bluman to get out of the store — the powder might explode and blow him up. I heard it explode afterwards."

There is no evidence that Bluman instructed Kessel not to save the goods. On the contrary, Kessel's and Bluman's acts conclusively disprove such instructions. To authorize the admission in evidence of the acts and declarations of Kessel and others, they must have been made and done by authority of Bluman. The State failed to prove such authority, and the circumstance, to wit, appellant's instructions to Kessel to save the best of the clothing, and the act of Kessel, saving the clothing, negative with great strength such authority. But it may be contended that there was authority, because Bluman prohibited the negro from taking out goods. The negro swears to this. Bluman denies it. But, concede that this negro was told not to take goods, does it follow that he did not want them saved? By no means. There might have been wise reason for this. Appellant's conduct in this respect might have been to the interest of the insurance companies. He may have feared that the negro intended plunder. But appellant denies that he told the negro to put down the goods. Here was an issue of fact, and the court should not have permitted the State to corroborate the negro by the unauthorized acts and declarations of Kessel and others. If Kessel had been directed by appellant not to save the goods, this fact was competent evidence to prove that he intended to defraud the insurance companies, and also to corroborate the negro. But, if he had not so been directed, the acts and declarations of Kessel and others, not occurring in his presence, were not evidence for either purpose.

The testimony of Dodd was evidently inadmissible. He was not an expert at saving goods from a burning house. Neither, indeed, could he or any other person be an expert at such business. Why? Because the circumstances and conditions attending the burning of different houses are so varied and distinct as to preclude the possibility of any person being an expert. The extent and situation of the fire, the material of which the house was constructed, the danger attending those engaged in the salvage, the number and zeal of those engaged in the work, are some of the circumstances which enter into the problem as to how many goods may be saved from a burning house.

Were the acts and declarations of Kirk, Hillsman, and Kessel, and the testimony of Dodd, harmless? The theory of the State is, that Bluman desired the goods burned in order to get the insurance. The State persistently urged these circumstances. It is first found in Kirk's testimony, then in the testimony of Hillsman, and finally Kessel is permitted to state, that if Hillsman stated that he directed that goods should not be saved, he would not deny the statement. All of the circumstances tended to establish the State's theory; and in line with these facts, and for the same purpose, the testimony of Dodd was received. To the introduction of all this matter counsel for appellant objected. The court overruled the objections, and it went to the jury as evidence in the case. In what light had the jury the right to, and probably did, view this evidence? Evidently as strong testimony in support of the theory of the State, that Bluman desired the goods should be burned, so that he could obtain as much of the insurance money as possible, and that therefore he must have advised, agreed to, and hired Kirschner to burn the house for said purpose.

Appellant introduced in his behalf his wife, Mrs. Nora Bluman, who testified on direct examination about having her trunks, containing her wedding trousseau and solid silver presents, placed in the store, downstairs, a few weeks before the fire, and about having her wedding trousseau, silver, etc., placed up-stairs, and that everything up-stairs was burned up. Upon cross-examination, counsel for the State asked her: "Did you not, at the hotel, on the night of the fire, after the fire had broken out, state that you had a presentiment that something was going to happen?" Defendant objected, because the witness was the wife of defendant, and on her direct examination she had not been asked about such things, and that the question was not permissible on cross-examination of the wife. Objections were overruled, and Mrs. Bluman answered, "I did so state." The wife can be a witness for, but not against her husband. The cross-examination must be confined to the matter elicited by the direct examination. This is the settled rule. The State could have examined Mrs. Bluman fully as to the trunks, their contents, when they were placed in the store, etc., and if she had made other statements regarding these things this could have been shown. What relation or pertinency a presentiment which she way have had bear to the testimony about the trunks, their contents, etc., we fail to perceive.

The Attorney-General contends that this matter was also without injury. It was not germane to the testimony in chief, nor did it tend to contradict her evidence in any legitimate manner. It was therefore the State's evidence. She was made a State's witness, and her evidence was a part of the State's case, just as if the State had introduced her, and proved by her that she had had a presentiment that something was going to happen, and that when the the fire broke out she stated the fact that she had had such a presentiment. Can it be contended that the State had the right to prove these facts by the wife of defendant? Certainly not. For what purpose could, and perhaps did, the jury use this presentiment of the wife? The witness was the wife of defendant — a relation than which none can be closer or more confidential. While the 'house was burning she speaks of this presentiment. The jury interprets and applies it to the burning of' the house. Was it in fact a presentiment, or had she been informed by her husband that the store was to burn? All people do not believe that there is such a thing as a presentiment. Those who do may not have believed this to have been such, because now closely connected with the burning of the store. For what purpose could the jury have used this matter? Evidently to prove that appellant had determined to burn, or have burned, his store, and had directly or indirectly informed his wife of his intentions. The State certainly desired to use it for this purpose. There was no other possible use to which it could be applied. But it may be urged that Mrs. Bluman gave such an explanation of her presentiment as to eliminate from it all that which was pernicious. This proposition is correct, and should solve the question, injury vel non, against the appellant, but for one stubborn fact which can never be settled by this record — did the jury believe her explanation? We know not, nor does any other person know, save the jurors who tried the case.

Rehearing granted, the judgment reversed and cause remanded.

Rehearing granted, and cause reversed and remanded.

DAVIDSON, Judge, concurs.

SIMKINS, Judge, dissents.