Nash v. State , 121 Tex. Crim. 13 ( 1932 )

In Wilson v. State (Texas Crim. App.), 24 S.W. 649, Judge Hurt says it is not the law that in arson cases ownership must be proved by deed or some writing. The same doctrine is announced in the cases discussed in the original opinion, and we intended to follow this doctrine, and, if we did not make it plain, we here now say that proof of ownership of the property alleged to have been burned in arson cases can ordinarily be made by parol. We find in this state no cases holding directly contrary to this, but, in so far as any intimation or suggestion that the contrary should be the rule may appear in Goldsmith v. State, 46 Tex.Crim. Rep., 81 S.W. 710, Rogers v. State, 26 Texas App., 404, 9 S.W. 762, and Hester v. State (Texas Crim. App.), 51 S.W. 932, same will be overruled.

The ownership of the burned property in McAdams having been properly proved by parol testimony, the objection to the introduction of a certified copy of the deed to said property to McAdams, which objection was based on failure to file same and give proper notice a sufficient length of time before the trial, would seem of no avail. Such testimony of conveyance added nothing to the case against appellant, and could not have harmed him.

In our original opinion we declined to reverse the case for the admission of an insurance policy on the burned house, in which McAdams was beneficiary, and with which no connection of appellant was shown, basing our conclusion on the proposition that the guilt of appellant being manifestly supported by other testimony, and he having been given the lowest penalty, the error of the admission of the insurance policy would be harmless. Upon more careful review of the testimony we doubt whether we should have held the admission of this testimony erroneous. The case was one of circumstantial evidence. The house burned belonged to Mr. McAdams, who lived in Big Spring, a town situated several hundred miles from Corsicana. Appellant's mother, with whom he lived in Corsicana, was McAdams' agent and looked after this property. It had been vacant since January. It burned the night of July 6th. Mr. McAdams was a witness for the state, and his testimony in the record indicates that he was a very indefinite and unsatisfactory, if not an unwilling, witness, but he did admit that appellant's mother looked after this property for him, and that he, witness, was in Corsicana some ten days before the fire, and the house was then vacant. Mr. Bryant, an insurance agent, was introduced as a witness for the state, and testified, in the presence of the jury, to the existence of the insurance policy referred to in this bill of exception, and further testified that a vacancy permit was put upon said policy on July 2nd, and when asked as to who applied for the vacancy permit he testified, "As to who applied for it (the vacancy clause) will say that Mrs. Nash came to my office on the morning of the 2nd and said — ." It having been put before the jury without objection that an insurance policy was against the property, and that same had upon it a vacancy permit, it might be seriously argued that the admission of the policy itself put nothing new before the jury. However, in view of the fact that when appellant was arrested the day after the fire he was badly burned, that he did not take the stand, but introduced his mother who testified that she was present on the morning of the day of his arrest and saw him when he received the burns mentioned as the result of a gasoline explosion, and that she also testified that appellant was at his home and in bed with her at 1 o'clock a. m. the night of the fire, — that being the time testified to by witness Bridges as the hour of the explosion in the burned house, following which he saw appellant leave the house and get in a car and go away, we would be unwilling to say that the trial judge was not within his discretion in allowing proof of the policy, and especially of the introduction of the vacancy permit placed thereon on July 2nd, four days before the house was burned, said permit being obtained, apparently, by the mother of appellant who was the agent of McAdams in Corsicana to look after the house. In a case of circumstantial evidence, the mind explores every available source from which legitimate light may be shed on the issue of the guilt of the accused. We are not apprized by the bill complaining of the introduction of the policy as to the state's purpose in so introducing same, and it may have been for the purpose of getting before the jury the date of the vacancy permit which was put on it on July 2nd, and which continued only for one month.

In the argument complained of in bill of exception No. 5, in replying to a severe attack made on witness Bridges by appellant's counsel, the state's attorney said he was "willing to stack Bridges up against Doyle Nash any time. This boy, Bridges, is an angel when you compare him to Doyle Nash." The proof showed that Bridges had pleaded guilty to burglary. The court instructed the jury not to consider this argument. We would hardly be inclined to hold such argument so hurtful as to require a reversal, even though the court had not so instructed the jury. It put no new fact of harmful effect before the jury. It was only an expression of opinion by the state's attorney that he thought a burglar more admirable than a houseburner.

The state's attorney said to the jury, in substance, in another argument complained of that if appellant was burned at his home the morning after the alleged fire, the fire would surely have burned his shirt. "Why didn't they bring his shirt?" We see nothing in this argument in the nature of a reference to appellant's failure to testify. An 18-year-old boy making a fire and attempting to use gasoline, as testified to by appellant's mother and Mr. Lamb, would likely have on some kind of clothes, and same might reasonably be expected to exhibit evidence of a fire caused by an explosion of gasoline. What we have said in regard to this complaint applies, in substance, to another argument of the state's attorney in reference to the failure of the defense to produce the container or oil can in which a witness said he delivered three gallons of gasoline to the appellant about 9 or 10 o'clock the night of the fire. Appellant's mother claimed that her son picked up the gasoline can the morning after the fire and was in the act of pouring some on a fire he was trying to start when it exploded and burned him. We think it a fair criticism for the state's attorney to ask why the can was not produced.

State witness Bridges testified that he had been with a girl and was on his way home alone when he heard the explosion at the burned house and saw appellant run away from same. The court refused to compel Bridges to divulge the name of the girl with whom he had been. Appellant cites Berrian v. State,212 S.W. 309. We do not find the case. Probably the case of Berrian v. State, 85 Tex.Crim. Rep., 212 S.W. 509, is referred to. We find nothing in it, or the other authorities cited in the motion in support of this complaint, which seems to indicate error in the court's ruling.

Being unable to agree with appellant's contentions, the motion for rehearing will be overruled.

Overruled.