Dawson v. State

• Decision Date: 26 May 1897
• Citation: 40 S.W. 731
• Parties: DAWSON v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 731

DAWSON v. STATE.

Court of Criminal Appeals of Texas.

May 26, 1897.

Appeal from district court, Milam county; E. L. Anthony, Special Judge.

C. A. Dawson was convicted of conspiracy to commit arson, and appeals. Reversed.

R. Lyles, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of conspiracy to commit arson, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The principal witness in the case against appellant was L. F. Saucer, a confessed accomplice. He testified to a positive agreement between defendant (C. A. Dawson), himself, W. R. Clark, and John Thomas, made and entered into at Lancaster, in Dallas county, about the 17th day of October, 1895, to burn a house situated in Cameron, Milam county. Appellant had stored in said house a lot of household goods, including a piano, which were insured; and he proposed to employ the others to burn the house for him, for which he was to pay them $100. It seems that, about the 26th of October, Clark, Saucer, and Thomas were in Dallas. Clark and Thomas had previously agreed to go to Cameron and burn the house. Clark, however, insisted that Thomas should go to Cameron by himself, and burn the house. Thomas refused to go alone, but said he would get a man from Sherman, by the name of Smith, to go with him and aid him in carrying out the plan of the conspirators. Smith came that night, on receipt of a telegram from one of the parties, and at Dallas entered into the conspiracy; and Smith and Thomas, according to the testimony of Saucer, left Dallas on the morning of the 27th of October, on the Santa Fé train, for Cameron. The proof showed that the house in Cameron was destroyed by fire on that Sunday night, about 12 o'clock. There are some circumstances tending to corroborate the accomplice, which will be alluded to later on.

Appellant made an application for a continuance on account of the absence of Mrs. John Whaley, Charles Lebo, J. J. Harris, E. F. Ford, all of Dallas county, and Mrs. C. A. Dawson, of Van Zandt county. The application shows diligence as to all of these witnesses, but there is no showing as to what Mrs. Whaley or Charles Lebo would testify to, so they may be eliminated. The officer's return showed that the witnesses George Price, J. J. Harris, and E. F. Ford were in custody at Dallas, but the nature of their custody is not shown. The state, however, undertook to have said witnesses present at the trial, and George Price was present, but the others are not shown to have been present. The evidence of J. J. Harris and E. F. Ford is not shown to be material. The record shows that Mrs. C. A. Dawson was sick, and could not be brought to court. Appellant "desired her testimony for the purpose of proving a list of the goods in the house burned; that she stored said goods in the house herself, and took an inventory of all the articles; that she is acquainted with the value and cost of all the articles stored in said house, and will testify that they were worth more than $2,500, and that they were insured for only $1,000." In view of the fact that the only motive assigned to the defendant for the conspiracy to burn said property was for the purpose of defrauding the insurance company, it would appear that her testimony was material. Defendant himself shows that he was not conversant with all the articles stored, and that he had no list or inventory of said articles; that his wife alone had said list. Whether the defendant could prove the same facts by himself or not, he had a right to have his wife present, and to make this proof by her. The application, however, shows that he was not conversant with the articles and their value, and she was. Under the circumstances of this case, we cannot but regard her testimony as material, and the court should have granted the continuance on account of her unavoidable absence.

Defendant objected to all testimony of the conspiracy in Dallas because the indictment alleged said conspiracy was in Milam county. Code Cr. Proc. 1895, art. 242, gives jurisdiction of conspiracies to the county where the conspiracy was entered into, or in the county where the same was agreed to be executed. In this case, while the proof showed that the conspiracy was entered into in Dallas county, it was to be executed in Milam county. This county had jurisdiction, and it was not necessary to allege that the conspiracy was formed in Milam county. Under a similar statute authorizing the prosecution for theft either where the theft was committed, or through or into which the property may have been taken by the thief, where the prosecution is in the county into which the property is carried, it has been held sufficient merely to allege the theft in the county of the prosecution. And we can see no difference in principle between such a case and the question now before us.

After proving the terms of the conspiracy by the witness Saucer as made and entered into at Lancaster, in Dallas county, and after proving that the house was burned on Sunday night, the 27th of October, the state proved by the witness Saucer: "That he was in Dallas on Monday, the 28th of October. That he met Clark and Thomas on the street, and Thomas then told him that he and Charley Smith had burned the house of H. H. Nesbitt, in Cameron, Texas. That Thomas said it was the slickest job he ever saw; that they broke out one of the panes of glass, and took down the stick than ran from the top of the window frame to the top of the sash, and hoisted the window and got into the house; that after they got in they found a two-gallon can of gasoline, and that they poured it over the things, and lit a match and stuck to it, and that it blazed up so quick that they like to have not gotten out of the house, and that he [Thomas] lost his watch in getting out the window; that he and Smith would have gotten back last night if the train had not been late; that Smith did not stop in Dallas, but went straight through to...