Kline v. State

• Citation: 184 S.W. 819
• Decision Date: 13 October 1915
• Docket Number: (No. 3663.)
• Parties: KLINE v. STATE.
• Court: Texas Court of Criminal Appeals

184 S.W. 819

KLINE v. STATE.

(No. 3663.)

Court of Criminal Appeals of Texas.

October 13, 1915.

On Motion for Rehearing, February 2, 1916.

Dissenting Opinion, April 12, 1916.

Appeal from District Court, Clay County; J. W. Akin, Judge.

P. J. Kline was convicted of arson, and he appeals. Affirmed.

G. H. Culp, of Gainesville, and Arnold & Taylor, of Henrietta, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of arson, and his punishment assessed at the lowest prescribed by law.

He has several bills of exceptions. The state objects to these, claiming they are wholly insufficient to authorize or require this court to consider them. As a sample of them, we will state the substance in full of his first bill, quoting part:

It gives the style and number of the cause, the court and term, and states that upon the trial the state offered in evidence this letter:

"Henrietta, Tex., August 17, 1914. Mr. C. W. Martin, Omaha, Neb. — Dear Sir: Inclosed you will find a check, $25.00, the balance due on the insurance policy of our school. I have had great difficulty with our school in order to get it on a running basis, and hope by the first of November to be able to have a good little school for our children. I have a great obstacle to contend with, or we few Catholics have here, as we are surrounded by Protestant bigots and they seem to hate a Catholic school, and have done all in their power to check us. However, I hope with God's grace and help we will be able to overcome this prejudice. Thanking you for the favors you have extended us, and with best wishes, I am, Yours in X D, Rev. Philip J. Kline. Henrietta, Texas, Box 273." [Ex. No. 45.]

That he objected to it being introduced in evidence, and especially to that part which we have italicized above, on these grounds: (1) It was wholly irrelevant and immaterial. (2) It did not prove or tend to prove any issue in the case. (3) It was highly prejudicial to his rights. That the court overruled his objections and permitted the letter to be read in evidence, to which he excepted. The court approved it with these qualifications and conditions:

"The objections urged in this bill were made at the time the district attorney was reading said letter to the defendant on cross-examination, while said defendant was testifying in his own behalf, and before said letter had been offered in evidence by the state. Before said letters, including this one, were offered in evidence, the following proceedings were had, while the defendant was still testifying in his own behalf on redirect examination by Hon. R. E. Taylor, attorney for defendant: Mr. Taylor, after interrogating the defendant about the amount of improvements he had placed on the burned building, asked the following questions: Q. State whether or not you now say, since you have gone over and read these letters, about what you would say was the amount of money in the aggregate, that you spent on this building? A. I would figure between $2,500 and $3,000. Mr. Taylor: I want to offer in evidence the letters you read here. (It is claimed by counsel for defendant that this offer was made for the purpose of showing his expenditures on the building, only; and I accept his version of his offer.) Said letters, including the one here in question, were thereupon offered in evidence, and read to the jury by district attorney. This qualification applies also to all the other letters introduced."

The rules prescribing the requisites of bills of exceptions have been so long and clearly established and reiterated again and again in the books and decisions that we will not again state or quote them here. We merely will again cite some of the cases and the authorities on the subject. Section 857, p. 557, White's Ann. C. C. P., and section 1123, p. 732; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Ortiz v. State, 151 S. W. 1058; Best v. State, 72 Tex. Cr. R. 201, 164 S. W. 997; Arnold v. State, 74 Tex. Cr. R. 269, 168 S. W. 125. Measured by these rules, there can be no question but that this bill is so wholly deficient as not to authorize or require this court to consider the point attempted to be raised by it.

No facts are given to enable us to understand whether the ruling is correct or not. It sets out none of the proceedings so that we can tell anything about it. All it tells is the state introduced said letter in evidence over his said objections: (1) How or why it was irrelevant or immaterial is in no way shown or intimated by the bill. (2) It in no way shows what "any issue in the case" was, so we can possibly tell whether or not it tended to prove them or any of them. (3) It in no way shows how or why it wrongly prejudiced his rights. A mere assertion by him of said several objections in no way shows or tends to show they or any of them are true or good. We are forbidden by the rules to go to the record or statement of facts to aid or defeat his bill. It, of and within itself, must give us all necessary information. The qualification of the judge controls the bill, and it in no way aids, but is against, his bill. It shows appellant himself regarded the letter as material and relevant, and as tending to prove some issue in the case, because he introduced it in evidence before the state did, and before he objected to the state doing so. All pertinent and relevant evidence, if incriminating, necessarily injures an accused's rights as tending to show him guilty, or rebut some claimed defense he may assert. That is the very reason it is admissible, and should be introduced. If we could resort to inferences, which the rules forbid, and judging by appellant's brief, we might infer appellant thought the jurors might not be Catholics, "but Protestant bigots," and influenced against him by his particular language in his letter specially objected to. But, if so, the bill in no way shows it, nor that the jurors are not Catholics. It shows nothing on the subject. Nor does the record otherwise show that any or all the jurors were Protestants, whether bigots or not, or that they were not Catholics.

But suppose we should consider the bill. Then it must be considered in the light of the whole record. It would be but fair to both sides to do this, if it is to be considered at all. Then what do we find the record to show in connection with this bill? We will state some of the salient features which are in no way stated by the bill.

The indictment charged that appellant burned his own house, it being insured at the time. The testimony showed it had been an old school building of the city of Henrietta long since abandoned, and unoccupied for any purpose, years before, and all the time it was owned by appellant, and at the time it was burned. That he bought it and the more than two blocks of ground on which it was situated from said city about two years before it was burned, for $2,200, paying only $200 cash, and giving his three notes in about equal amounts for the balance due in 6, 12, and 18 months thereafter. That during the time he owned it he made certain alterations in the internal arrangement of the building at a cost claimed by him to be about $2,500 to $3,000. These alterations by no means added the costs thereof to the value of the building, for one of the doctors to whom appellant offered to sell it for a hospital, very shortly before it was burned, testified said alterations injured the building for hospital purposes. It was shown appellant offered to sell it to some doctors, at first pricing it to them at about $6,000. They declined to buy at that price. One real estate agent testified that $2,500 was a fair market value for the building and ground at the time the building was burned. Mr. Peninger, assistant state fire marshal, who talked to appellant very soon after the fire, testified appellant then told him he had offered to take $3,500 from the doctors for the building and ground for a hospital, and his faint recollection was appellant also at that time said the ground alone, without the building, was worth $2,000 to $2,500. Appellant did not deny any of this. That in order to get a loan on said building and ground from the Marquett Life Insurance Company for about $1,800, which he did, on March 1, 1913, he took out a fire insurance policy in his favor on said building from a local agent at Henrietta in the Commercial Insurance Company for $2,500 with loss payable to said life insurance company to also secure it in said loan, and that one year later, March 1, 1914, he had that policy renewed for another year. That on March 19, 1913, he also for himself insured said building for three years in the Catholic Mutual Relief Society of Omaha, Neb., through its secretary, Mr. Martin, at Omaha, for $8,000 additional. Said relief society was exclusively owned and controlled by Bishops of the Catholic Church, and Mr. Martin was a Catholic. Appellant was a Catholic priest, and had resided at Henrietta and had his home and church building and organization, and ministered there, for about five years before and at the time of said fire. The evidence tends strongly to show, if it does not clearly do so, that appellant did not tell either of said insurance companies at the time he took out said insurance policies, and renewed said $2,500 one, of the insurance he was taking out from the other company, and that neither company, nor any agent of either, had any notice or knowledge thereof until long after said fire. That when appellant was first interviewed by Mr. Peninger and others soon after said fire he repeatedly and specially and positively stated to them that he had no insurance whatever on said building except said $2,500 policy, and that when said house was burned he was in Ohio, telling particularly the route and railroad he went and the cities he passed through and a certain priest he had seen in Ohio on the trip. All his...