Rogers v. State , 26 Tex. Ct. App. 404 ( 1888 )

Willson, Judge.

In the indictment, the house alleged to

fo have been burned, its ownership and occupancy are described as follows: “The house of Mary Gandy there situate in the town of Granbury, said Hood county, Texas, and the .said house being then and there held and occupied by O. M. Rogers for and as the agent of J. M. Rogers, the said J. M. Rogers having theretofore, on about the second day of November, 1886, rented and leased said house from the said Mary ■Gandy by and though J. M. Skipper as the agent of her the .said Mary Gandy.”

■ Defendant excepted to the indictment upon the grounds that "the averments descriptive of the house are uncertain, and that .the avernients as to the ownership and occupancy of the house are uncertain, inconsistent and repugnant. These exceptions were overruled, and this ruling is insisted upon as error by appellant’s counsel.

It was not error to overrule the exceptions. There is no un. •certainty or repugnancy in the allegations excepted to. It is plain therefrom that Mrs. Gandy was the general owner of the house; J. M. Rogers was her tenant, and C. M. Rogers his-clerk, and the actual occupant. For the purposes of this prosecution it would have been sufficient to have alleged that it was-the house of C. M. Rogers, or was a house occupied by C. M. Rogers, situated in the town of Granbury, in Hood county,. State of Texas. It was unnecessary to allege the general ownership of Mary Gandy, or the leasing of the house to J. M. Rogers. These unnecessary allegations, however, do not vitiate the indictment, but merely devolve upon the prosecution the burden of proving them. The only defect we perceive in the indictment is that of redundancy, and such defect does not render bad an otherwise good indictment.

II. On the trial the State, over the defendant’s objections,, was permitted to prove orally, by the witness Skipper, that-Mary Gandy was the owner of the house burned. The objections to this testimony were that the ownership of Mary Gandy must be proved by deed or other written evidence of title, and that Skipper’s testimony as to her ownership was merely hearsay. It is a sufficient answer to this supposed error to say that-the ownership of Mary Gandy of the house in question is sufficiently established by other testimony adduced on the trial without objection on the part of the defendant. Furthermore,, it being proved that the defendant occupied the house under a lease from Mary Gandy, he can not be heard to question her ownership of the house. We do not believe it was error to admit the testimony objected to, but, if it was, the error is immaterial in view of other testimony in the case.

It was not error to admit in evidence the entries in defendant’s book, and the explanations thereof of the expert, Reichstetter. These entries were proved to be in the hand writing of the defendant, and were in a book used by him in the conduct of his business. The same, and the meaning thereof, were, in view of other evidence in the case, relevant to the issue, and constituted a circumstance which tended to connect the defendant with the commission of the arson, and which corroborated the testimony of the accomplice witness Irwin. They were shown to be false entries, representing that corn, millet and hay had been purchased and received by the defendant into the house immediately preceding the burning of the house. If these articles had, in fact, been in the house when it was destroyed by the fire, they would have been covered by a policy ■of insurance held by the father of the defendant, and his father would have been entitled to demand upon said policy their value, amounting to one hundred and fifty-three dollars.

Irwin, the accomplice witness, testified that defendant, shortly before the house was burned, told him that he wanted the house burned in order to get the insurance money, and that he ■saw defendant writing on his books, and defendant told him he was fixing his bo >ks so as to swindle the insurance company, ■so as to make it appear that he had as much as the insurance, .and that he had his books about ready. As to the explanation •of the entries by the expert witness, we think it was competent testimony. Of themselves, the entries, to other than a person skilled in book keeping, might be ambiguous, requiring explanation in order to make certain their precise meaning. It was proper, therefore, to have them explained by an expert in book keeping.

By the witness Elisha Lott the defendant proposed to prove that, on the day the fire occurred and before it occurred, while going from Granbury to Cleburne in company with said witness, they met some wagons loaded with corn, etc., and that defendant had certain conversations with the teamsters, in which the ■said teamsters said they were taking the produce to Granbury to deliver to defendant; that it was produce that J. M. Rogers, defendant’s father, and the owner of the feed store of which •defendant had charge, had contracted for to be delivered to defendant; and that defendant directed them what to do with said produce. And he proposed to prove further by said witness •that, on the occasion of meeting said wagons, the defendant said to him that the wagons were loaded with produce which his father had directed to be delivered to him at Granbury, and that he had made entries in his memorandum book at Granbury .about said produce that would enable McGough, whom defendant had left in charge of the feed store, to understand about the same and to know what to do with the produce. Upon objection made by the State, this proposed testimony was rejected, and defendant excepted.

We are of the opinion that said testimony was competent and should have been admitted. The State had introduced in evidence certain entries found in defendant’s book; these entries, unexplained, constitute an inculpatory circumstance, and furnished corroboration of the testimony of the accomplice witness Irwin. The rejected testimony tended to explain and to weaken the force of the false entries upon the book, by showing that probably the same had been innocently made; and, furthermore, it was in part corroborative of the testimony of J. M. Rogers, the defendant’s father, who testified that he had purchased such produce and had directed the same to be delivered to the defendant at Granbury. Defendant’s declarations to Lott about the entries made upon a memorandum book were admissible, we think, under the provisions of the statute. (Code Crim. Proc., art. 751; Greene v. The State, 17 Texas Ct. App., 395; Stockman v. The State, 24 Texas Ct. App., 387; Davis v. The State, 3 Texas Ct. App., 91.)

The conversation between defendant and the teamsters with reference to the produce was admissible, we think, for the purpose of showing that the defendant was in fact, before he left Granbury, expecting such produce to be brought to him, and that it was in fact being carried to him, thus rebutting the theory of the State that no such produce had been contracted for, or was to be delivered to the defendant. Upon the same .ground, and for the same purpose, we think the proposed testimony of J. M. Rogers, as set forth in bill of exception No. 5, was relevant and should have been admitted. While all this rejected testimony may be father remote and unsatisfactory, still we think it was relevant, and, in view of the character of the testimony relied upon by the State, it might reasonably have influenced the jury favorably to the defendant, and hence it was material error to reject it.

With respect to the charge of the court, when it is considered •as a whole, and with reference to the evidence, it is in our opinion not subject to the exceptions reserved to it by the defendant. With a single exception it is unobjectionable. The ■single defect to which we refer is that it fails to instruct the jury to not consider the the testimony introduced by the State for the purpose of discrediting the witness Lott, for any other purpose than that for which it was admitted. A reference to such impeaching testimony will show the importance and necessity of such an instruction, in view of the peculiar facts of this case. (Branch v. The State, 15 Texas Ct. App., 96; Barron v. The State, 23 Texas Ct. App., 462; Tucker v. The State, 23 Ct. App., 512.) In the absence of such an instruction the jury may have considered the statements made by the witness Lott, as testified to by the impeaching witness, as evidence bearing upon the main issue, and as corroborative of the testimony of the accomplice Irwin; and if it was so considered it must have operated prejudicially to the defendant.

Opinion delivered November 21, 1888.

Because of the errors mentioned, the judgment is reversed and the cause is remanded.

Reversed and remanded.