Gutgesell v. State

• Decision Date: 05 January 1898
• Citation: 43 S.W. 1016
• Parties: GUTGESELL v. STATE.
• Court: Texas Court of Criminal Appeals

43 S.W. 1016

GUTGESELL v. STATE.

Court of Criminal Appeals of Texas.

January 5, 1898.

Appeal from district court, Collin county; J. G. Russell, Judge.

Frank Gutgesell was convicted of arson, and he appealed. Reversed.

G. R. Smith, Abernathy & Beverly, and Garnett, Jones & Merritt, for appellant. Mann Trice, for the State.

HURT, P. J.

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

The indictment alleges that appellant "did unlawfully and willfully set fire to and burn the house of Elizabeth F. Gullett," etc. The proof shows that the fee in the lot, and consequently the house situated thereon, was in Mrs. Elizabeth F. Gullett. However, it is further shown that at the time the house was burned appellant and one Asbury were in possession of different apartments of the house burned. Appellant contends that, inasmuch as the proof shows that he was the occupant of the house burned, and in possession thereof, there was a variance between the allegations of the indictment and the proof, because the indictment alleged that Mrs. Gullett was the owner. As we understand it, his contention is that ownership, under our statute in arson cases, must be charged in the occupant or person in possession of the house. We do not agree with this contention. The allegation in the indictment here is that Elizabeth F. Gullett was the owner; and the proof showed that the fee of the property was in her, and that appellant was her tenant. At common law, the offense of arson is defined to be "the malicious burning of the house of another." Under our statute, it is "the willful burning of a house," and the owner is not guilty of the crime if he burn his own house, except under certain circumstances provided by our statutes. Ordinarily, in cases of arson, the offense is committed by some one other than the occupant of the house; and in such cases it would ordinarily be sufficient to charge the ownership in the occupant. In this case, however, the occupant or tenant of the premises is the party charged with the burning; and we hold, under our statute, that in all such cases it is sufficient to charge the ownership of the premises to be in the person owning the fee. The state had the right to prove that the accused had been charged with the crime; and that he was suspected of committing the crime; and in this connection proof that the accused stood mute, and made evasive answers, etc., would be admissible. This character of testimony is treated in the nature of confessions. But the state had no right to prove by the witnesses H. A. Finch, Williams Warden, J. W. Asbury, and Henry Herndon that they each told the appellant that it was the opinion of the people of McKinney that he had burned said house. Appellant had denied on each occasion most emphatically any connection with the burning of the house. There was no equivocation, but positive denials in each instance. Now, this procedure placed before the jury, through the mouths of these witnesses, the opinion of the people of McKinney that appellant was guilty. It served no legal purpose. The statement that the people believed that appellant was guilty elicited nothing that was admissible on the trial. Hence we have these statements in regard to the opinion of the people of McKinney standing out alone, and clearly inadmissible, and calculated to injure the rights of the accused. And, even if it be conceded that, in connection with the statements by the witnesses to him that the people of McKinney believed that he had set fire to and burned said house he made statements in connection therewith that was legitimate testimony against him in the nature of confessions; yet these circumstances did not render admissible the illegal testimony adduced against him in regard to what the people of McKinney believed about appel...