Johnson v. State , 155 Tex. Crim. 444 ( 1950 )

DAVIDSON, Judge.

Appellant stands convicted of the wilful burning of his house, situated within the city of Hillsboro. The punishment was assessed at two years in the penitentiary.

Appellant and his wife owned and, together with their four sons, occupied their home. At 10:40 o’clock at night a fire in the second story of the house was reported to the fire department.

The proof showed a strong odor of kerosene oil. One witness testified that in his opinion, inasmuch as he had detected such odor at the time, the oil was used in setting on fire and burning the house. The sheriff was permitted, without objection, to testify to the hearsay declaration of some unknown party reporting the fire that “Kay Johnson has set his house on fire and I want you to come down there.”

It appears that on the afternoon of the same day appellant’s wife left with a friend for a visit in another city.

A son of appellant testified that about 8:30 o’clock on the night of the fire he saw his father at home and about thirty minutes later he and his father left and went to the home of the witness Green.

The witness Green testified that when appellant and his son arrived at his home, the son said to him, “I am bringing dad down here to keep him from setting the house afire.” The witness Green replied, “No, he ain’t going to do that,” to which appellant replied, “Yes, my wife is gone and I don’t need it.” Green testified that appellant was at that time under the influence of liquor but not drunk. Appellant remained at the Green home some ten minutes after his. son left. Green said that appellant at that time told him that “a year or so ago he had insurance on the house” but that “he didn’t speak about it that night.”

Annie Marie Long, appellant’s seventeen-year old niece, who lived with her mother and next door to appellant, testified that on the night of the fire when she was sitting in her front yard and appellant was seated on his front porch, she heard appellant say “he was going to burn his house down” and that the statement was made to no person but, rather, that he was “talking to himself.” Appellant at that time showed that he was or had been drinking. Thereafter, appellant was seen by the witness to leave the porch and go unstairs. Through a window she saw him with a five-gallon oil can in his hand after he reached the upstairs room. The witness detected the odor of kerosene oil. Some time thereafter — the exact time is not fixed —the fire was discovered in that particular room.

Appellant did not testify as a witness.

Evidence that the fire was of incendiary origin and appellant’s threat and proximity to the fire warranted the jury in reaching the conclusion of guilt. Appellant’s contrary contention is therefore overruled.

Appellant complains of the receipt in evidence of the proof that on the night of the fire appellant told the witness Green that “a year or so ago he had insurance on the house.” The objection to this testimony was that such was not the best evidence, that if the house was insured the policies of insurance would be the best evidence.

There is no allegation here that appellant burned his insured house. Insurance, then, was not an element of the offense charged and not necessary to be established. 4 Tex. Jur., Arson, Sec. 20, p. 819.

Moreover, the witness Green did not say whether the house was insured at the time of the fire or that appellant so told him. His testimony goes no further than that appellant said the house was insured in times past.

We are unable to conclude that the trial court erred in the particular pointed out.

Appellant complains of the overruling of what he termed and considered his first application for a continuance, because of the absence of witnesses by whom he claimed he could establish an alibi to the burning.

The trial court, in his qualification to the bill of exception presenting this matter, certifies that the application was “in fact a second motion for continuance, and not a first motion, as stated by attorney for defendant.” Appellant accepted such qualification to the bill, and is bound thereby. Consequently, the motion for continuance must be here appraised as a second motion for continuance.

In the first instance, the motion does not contain the averments necessary for a second motion, as provided by Art. 544, C. C. P., and for that reason is not sufficient to warrant consideration by this court.

A certain amount of discretion is lodged in the trial court touching continuances and, especially, second and subsequent applications. One of these is the discretion to determine whether a different result would have been reached had the testimony been before the jury.

We cannot say that the trial court abused this discretion in the instant case.

Other bills of exception have been examined and are overruled without discussion.

The judgment is affirmed.

Opinion approved by the court.