Enix v. State

• Decision Date: 19 December 1928
• Docket Number: (No. 11908.)
• Citation: 16 S.W.2d 818
• Parties: ENIX v. STATE.
• Court: Texas Court of Criminal Appeals

16 S.W.2d 818

ENIX v. STATE.

(No. 11908.)

Court of Criminal Appeals of Texas.

December 19, 1928.

Rehearing Denied May 15, 1929.

Commissioners' Decision.

Appeal from District Court, Hopkins County; Grover Sellers, Judge.

W. A. (Pete) Enix was convicted of arson, and he appeals. Affirmed.

Dial & Brim, of Sulphur Springs, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is arson; the punishment confinement in the penitentiary for four years.

The testimony for the state was substantially the same as that detailed in Enix v. State, 108 Tex. Cr. R. 106, 299 S. W. 430. On the present trial appellant, as well as his witnesses, testified that appellant was at a place other than the schoolhouse on the occasion of the fire.

Appellant, Roy Harry, Clarence Davidson, and others had gone hunting several hours before the schoolhouse was burned. As disclosed by bill of exception No. 2, state's witness Harry testified that during the hunt appellant wanted to go to Joe Minor's house for something to drink; that Harris and the others remained at the syrup mill close to the road while appellant went about 100 yards to Minor's house in search of home brew; that, when appellant returned, he stated to Harry and his companions that he got a half a glass or a glass of whisky at Joe Minor's house. Appellant objected to the foregoing testimony on the ground that it was immaterial, prejudicial, and not responsive to any issue in the case, and that the state was being permitted to go into an extraneous matter which was highly prejudicial to appellant. The court overruled the objection and qualified appellant's bill of exception with the statement that the testimony was admitted because of the fact that it was about incidents occurring on the night the offense was committed and was corroborative of the testimony of the accomplice Davidson as to things that occurred on the night the offense was committed. It is further stated in the qualification that several witnesses testified without objection on the part of appellant to the drinking of intoxicating liquor by appellant and his companions on the night in question. As shown on pages 15 and 16 of the statement of facts, the witness Harry testified, without objection by appellant, that he, appellant, and their companions bought an intoxicating liquor on the night in question and that he and appellant drank some of said liquor. Clarence Davidson, state's witness, testified without objection on the part of appellant, as shown on page 45 of the statement of facts, to the purchase and drinking of the intoxicating liquor by appellant and his companions on the night in question. This witness further testified fully, without objection, to the fact that appellant went to Joe Minor's house for the purpose of securing some beer and upon his return stated to him that Joe Minor had given him (appellant) a glass of whisky. Thus the very testimony against which objections were urged, as shown by bill of exception No. 2, appears in other parts of the statement of facts from the lips of another state's witness without objection having been interposed by appellant. The erroneous admission of the testimony does not call for a reversal if the same fact is proven by other testimony not objected to. Pryor v. State, 88 Tex. Cr. R. 211, 225 S. W. 374; Burgess v. State, 88 Tex. Cr. R. 146, 225 S. W. 182. It follows that, if the court erred in admitting the testimony, the error is harmless.

Bill of exception No. 3 presents the following occurrence: State's witness Harry testified that he, appellant, and others went to the site of Rockdale schoolhouse several hours before Paint Rock schoolhouse burned; that, upon their arrival at Rockdale, appellant struck a match, saying, "I will burn it up again"; that Rockdale schoolhouse had theretofore burned down. The bill of exception continues: "The defendant objected to the question as well as the answer sought to be elicited because it was immaterial and irrelevant and leading and suggestive and was undertaking to cast a reflection upon the defendant with reference to burning the schoolhouse and seeking to inject into the trial of this cause extraneous matter and undertaking to get before the jury an independent transaction and offense and was not responsive to any issue in this case. The court overruled the defendant's objection and the state was further permitted to ask the witness where they were going; what direction from where Rockdale schoolhouse was burned they went. The witness stated they went north, the court having withdrawn from the consideration of the jury the statement of the defendant related by the witness, `I will burn it again,' and his striking a match there at Rockdale schoolhouse, and thereafter permitted the state to show that Rockdale schoolhouse had...