Drew v. State, 22677.

• Decision Date: 12 January 1944
• Docket Number: No. 22677.,22677.
• Parties: DREW v. STATE.
• Court: Texas Court of Criminal Appeals

177 S.W.2d 787

DREW v. STATE.

No. 22677.

Court of Criminal Appeals of Texas.

January 12, 1944.

Rehearing Denied February 23, 1944.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Charles Oran Drew was convicted of arson, and he appeals.

Affirmed.

Noah Roark and Baskett & Parks, all of Dallas, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is arson. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant brings forward a number of questions for review. To discuss each of them in detail would extend this opinion quite at length and serve no useful purpose.

His first contention is that the evidence is insufficient to justify his conviction and that the trial court erred in refusing to give his special requested instruction to that effect. We have read the statement of facts with much care and find that the evidence is ample to sustain the jury's conclusion of the appellant's guilt.

By Bill of Exception No. 1 appellant complains of the action of the trial court in permitting the State to prove by A. L. Rambo, that he was the owner of the store building in question and that he had the care, control and management thereof, to which appellant objected on the ground that parol evidence was not the best evidence of ownership. We see no merit in this bill. The title to the land was not in issue. Hence, the ownership or possession of the property alleged to have been burned may be shown by parol evidence. In support of what we have said here, we refer to the following cases: Tinker v. State, 77 Tex.Cr.R. 506, 179 S.W. 572; Hamilton v. State, Tex.Civ.App., 165 S.W.2d 737; Nash v. State, 121 Tex.Cr.R. 13, 51 S.W.2d 689; Black v. State, 123 Tex.Cr.R. 476, 59 S.W 2d 168; Barnes v. State, 135 Tex.Cr.R. 111, 117 S.W.2d 441; also Branch's Ann. Tex.P.C., p. 1212, sec. 2149. We, therefore, overrule his contention.

By Bill of Exception No. 2 appellant complains of the following conversation between Mr. Rambo, the alleged owner of the burned building, and the appellant on the afternoon prior to the fire: Appellant inquired of Mr. Rambo if he wanted him (appellant) to put beaver board in the back room, to which Mr. Rambo replied: "You are the carpenter. I don't have anyone else to do it." Whereupon appellant said: "Well, if I do, you will have to pay me $2.50 extra", to which Mr. Rambo agreed. Then appellant stated to Mr. Rambo: "You will have to pay me extra for casing those windows and doors", whereupon Mr. Rambo inquired of him: "What does the contract call for?" Appellant then said: "I owe George Bennett $14.00. You give me that and we will forget it." Rambo then said to appellant: "If you don't want to finish the job, just go home and come back in the morning." To all of which appellant objected on the ground that it was irrelevant, not admissible for any purpose, and was not the best evidence of the contract. As we understand the record, this testimony was not introduced as tending to show the terms of the contract between appellant and Rambo but that a difference arose between them, which was a circumstance tending to show a motive for the commission of the offense charged. Any act on the part of the accused which tends to show a motive for the commission of the offense is admissible.

Bills of Exception Nos. 3, 9, 10, 11, 12 and 13 all relate to the appellant's intoxicated condition at the time of the fire, as well as before and subsequent thereto. When this testimony was given, appellant objected thereto on the ground that it was an attempt on the part of the State to prove an extraneous offense. It appears to us that there is no merit in either of the bills inasmuch as appellant testified that at the time of the fire he was in Sigler's Tavern drinking beer; "that he had had a plenty." When evidence is brought into the case from other sources which is of like character and to the same effect as that which appellant has introduced, he has no just ground for complaint. However, appellant's condition on the night in question was admissible for the purpose of tending to establish his identity as the person who committed the offense. Mr. V. C. Stracener testified that on the night in question, he was sitting in his automobile with his wife and three children; that he saw the defendant pass in front of his (witness') car and stumble over a bicycle; that he was not steady on his feet. He then watched his actions around the automobile; that he got in on the driver's side and passed through the car and got out on the opposite side, then passed around the car, got in again and proceeded on down the street from there; that he saw him standing in front of the store striking matches; that he stood there about three to five minutes during which time he struck five or six matches; and soon the witness saw a little glow in the store. The witness took the license number of the appellant's car which he handed to the Fire Chief on his arrival at the scene of the fire.

Appellant denied that he set fire to the building and testified that about the time the fire broke out he was in Sigler's Tavern drinking beer; that he had loaned his automobile to two men who drove it away from the tavern but soon returned. There is not any evidence that either of the two men to whom he loaned his automobile was intoxicated, but the appellant having admitted that he was under the influence of intoxicating liquor and the fact that the witness who saw him strike the matches and throw them into the store building testified that the party was intoxicated, tended to establish the appellant's identity, as well as corroborate the witness who identified appellant by his clothes and general appearance. His identity being an issue in the case, it was proper for the court to admit every fact and circumstance which tended to establish the identity of the person who set fire to the building.

Bills of Exception Nos. 4, 5, 6, 7, and 8 are qualified by the trial court, and as thus qualified they fail to reflect any...