Blumann v. State

• Decision Date: 25 March 1893
• Citation: 21 S.W. 1027
• Parties: BLUMANN v. STATE.
• Court: Texas Court of Criminal Appeals

21 S.W. 1027

BLUMANN v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1893.

Appeal from district court, Lee county; Beaureguard Bryan, Judge.

H. Blumann was convicted of being an accomplice in arson, and appeals. Affirmed.

Ed. Sinks, Rector, Thompson & Rector, and Jones & Garwood, for appellant. R. L. Henry, Asst. Atty. Gen., and Searcy & Garrett, for the State.

SIMKINS, J.

Appellant was indicted and convicted as an accomplice in the offense of arson, and his punishment assessed at five years in the penitentiary, from which he appeals.

1. The court did not err in overruling the motion for a continuance. The witness Hudson is not shown to have been sufficiently familiar with the Blumann stock as to have formed any definite idea as to its value. Nor does it appear that his estimate could or ought to have had any weight with the jury. If he had testified as appellant states he would, the testimony, in view of the facts proven, would have been probably untrue. Again, the witnesses who were to prove that Kirschner was suspected of burning his saloon in Austin were unimportant, in view of the facts that substantially the same testimony was introduced on the trial by the defense; and, besides, the said Kirschner was a self confessed criminal, upon whose uncorroborated testimony no conviction could be had. Walker v. State, 14 Tex. App. 618; Tucker's Case, 23 Tex. App. 512, 5 S. W. Rep. 180.

2. Nor did the court err in admitting proof of the confession of George B. Jones. The appellant was indicted as an accomplice, and Paul Kirschner and George B. Jones were charged as principals, and it devolved on the state to prove the guilt of the principals. Pen. Code, art. 89; Arnold's Case, 9 Tex. App. 438; Crooks' Case, 27 Tex. App. 239, 11 S. W. Rep. 444. And no error is shown in the failure of the court to limit this evidence to the proof of the guilt of Jones, for the reason that the testimony in no way implicated Blumann. On the contrary, it was shown by said evidence that Jones was ignorant of the fact that Blumann was implicated in the crime, and seemed surprised to learn it. Had the court so limited the evidence it would have been urged as error, because it excluded testimony tending to acquit appellant.

3. Appellant complains that the court erred in admitting, on the trial of this case, the testimony of Mrs. Kirschner, the wife of one of the principals in the crime. It appears that Kirschner was not indicted for the crime in the present indictment, which is exclusively against Blumann, as an accomplice; that neither Kirschner nor Jones was upon trial. Again, it is shown that, when her testimony was offered, Kirschner, her husband, had taken the stand, and had fully and freely testified as to his own guilt. The reason of the rule that excludes the testimony of a wife when her husband is jointly tried with others is because her testimony may injure him, and, upon sound principles of public policy, she cannot be heard to testify against her husband. It was so held in the Dills' Case, 1 Tex. App. 278. But this rule can have no application where the husband is not indicted and upon trial, and where he has confessed his guilt; and we see no error in the admission of the testimony. 1 Greenl. Ev. 342; 1 Whart. Crim. Ev. 392.

4. In the 4th, 7th, and 11th errors, appellant complains of the error of the court in admitting evidence that Kessel forbade the removal of goods during the fire because it might affect a recovery on the insurance policies. The evidence shows that Kessel was appellant's clerk, who kept the store key,...