Lemley v. State

• Decision Date: 02 June 1937
• Docket Number: No. 19062.,19062.
• Citation: 117 S.W.2d 435
• Parties: LEMLEY v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W.2d 435

LEMLEY v. STATE.

No. 19062.

Court of Criminal Appeals of Texas.

June 2, 1937.

On Rehearing May 4, 1938.

Rehearing Denied June 15, 1938.

Commissioners' Decision.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

J. S. Lemley was convicted of arson, and he appeals.

Reversed and remanded.

See, also, 130 Tex.Cr.R. 552, 95 S.W. 2d 113.

Roy A. Scott, of Corpus Christi, and Dorothy Harrison, of Austin, for appellant.

Ben J. Dean, Dist. Atty., of Breckenridge, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of arson, and his punishment was assessed at confinement in the State Penitentiary for a term of five years.

It was charged in the indictment, omitting the formal parts, that on or about the 27th day of August, 1935, J.S. Lemley did unlawfully and wilfully set fire to and burn the house of Rayford McNabb and W. P. McLean. The testimony shows that on the night of August 27 the appellant, Cleve Barnes, and a man by the name of Taylor went to the old E. Y. Jennings farm in Stephens county, Tex., and burned a house thereon situated which had been vacated by Mr. Oakley on the afternoon of said date. The State proved by J. W. Morrow, sheriff of Stephens county, that Rayford McNabb and W. P. McLean owned the land upon which the house was burned. Appellant objected to this testimony on the ground that it was oral and that the record would be the best evidence. If the title to the land had been in issue as in suits of trespass to try title, the rules of evidence as contended for by appellant would apply and the title papers would need to be produced or their non-production accounted for; but in the case of arson the title to the land is not a necessary issue to be adjudicated for the reason that one may have title to land and another may have the possession thereof in which event ownership may be alleged in either. Again a person may have title to land by inheritance or under the ten-year statute of limitation, in which event there would not be any title papers and proof of ownership would rest in parol. In the cases of Black v. State, 123 Tex. Cr.R. 476, 59 S.W.2d 168, and Nash v. State, 121 Tex.Cr.R. 13, 51 S.W.2d 689, this court held that oral testimony regarding ownership and possession of property was receivable in arson cases. We therefore overrule the appellant's contention.

Appellant next complains of the introduction of certified copies of the deeds without being filed among the papers in the case for three days and notice given thereof. This is not regarded as showing any error because oral testimony offered by the State is deemed to be sufficient under the authority of Nash v. State, supra, to show that the burned house was the property of McNabb and McLean. The introduction of the certified copies of deeds became harmless.

Appellant next contends that the deed executed by the collector of internal revenue conveying said property to the federal government and offered as evidence by him was sufficient to show the title to the alleged burned house to be in the federal government. His contention seems to be that such showing defeated the State's case. Said deed shows upon its face that the collector of internal revenue by summary proceedings sought to divest E. Y. Jennings of the title to the land upon which the house was situated. Under the authority of Clayton v. Rehm, 67 Tex. 52, 2 S.W. 45, 46, such deed of itself would not show title to the property to be in the grantee. We quote from the opinion as follows: "The deed of the tax collector, without proof of a compliance with all the requisites of the law necessary to call into exercise his authority to make the sale, is no evidence of title in the party claiming under it."

Appellant did not offer any proof that the collector of internal revenue complied with all the law necessary to call into exercise his authority to make the sale. To have held that said deed was a conveyance of the title to the property would necessarily have been a finding by the court that such deed did pass title and that all necessary legal proceedings by the collector had been complied with, without any proof in support thereof.

By bill of exception No. 1 appellant complains because the State was permitted to prove that the appellant's codefendant, Cleve Barnes, was a brother to Laura McNabb. While this did not tend to elucidate any issue in the case, yet we do not see how any injury resulted to the appellant by showing his relationship to some good woman.

By bills of exception 2 and 3 appellant complains because the State was permitted to prove by A. W. Sechrist that after the house was set on fire appellant and Cleve Barnes ran away from the building; that, after the officers had commanded them to halt and fired on them, Cleve Barnes shot at the officers with a shotgun. His objection to said testimony was that, since appellant was not in possession of the shotgun, it was irrelevant, immaterial, and prejudicial. It occurs to us that it was a part of the res gestæ. Appellant and Barnes were acting together in the commission of the offense. The act of one to prevent the apprehension of the other or both was admissible as a circumstance showing guilt. See Jackson v. State, 103 Tex.Cr.R. 318, 326, 280 S.W. 202.

Bills of exception Nos. 4, 5, 6, and 7 all relate to the introduction in evidence of the shotgun, which was carried by Cleve Barnes, and its exhibition before the jury. The testimony showed that appellant and his codefendant Barnes came to the premises armed for the purpose of resisting arrest and making their escape in case they were detected in the commission of the offense. Hence the same was admissible.

We have examined and considered all of the other bills of exception but fail to find that any of them disclose reversible error.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

It was alleged in the indictment that the property burned belonged to Rayford McNabb and W. P. McLean. It was necessary for the State to prove said allegation. We quote from 4 Tex.Jur. § 10, p. 807: "Arson is said to be directed more against the possession and occupancy than towards the ownership of the destroyed property. And, for the purposes of a prosecution for arson, the burned building is deemed to belong to the person who has the right of possession thereof. Title to and ownership of the property is rarely if ever in issue; nor will inquiry be permitted into the tenure or interest of the occupier or person in possession of the house, if in fact it was his dwelling."

Authorities are cited in the notes supporting the text. Article 402, C.C.P., provides in part as follows: "Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them."

It has been held that said article has application in arson cases. Morgan v. State, 114 Tex.Cr.R. 478, 22 S.W.2d 461; Phillips v. State, 17 Tex.App. 169. Also it has been held in many cases that the title to property not being involved in arson prosecutions that the ownership or possession of the property may be proved by parol. See the Nash and Black Cases cited in our original opinion, and the many authorities referred to in Nash's Case.

There is not one word of testimony to be found in the present record to the effect that either McNabb or McLean was ever in actual possession of the property burned, or ever exercised any control or management over it. The evidence does show that Oscar Oakley and his wife had been occupying the house; that they moved out the very day on the night of which day the house burned. If the Oakleys were tenants, the evidence fails to show by whose authority they occupied the property. Mr. Oakley was not called as a witness, and while Mrs. Oakley was a witness it was not sought to elicit from her the character of their occupancy. The house was vacant when it was burned, and the absence of evidence showing possessory control or management at any time of the property by the alleged owners led us into error in holding originally that the introduction of the record title by the State over appellant's objection was harmless.

We adhere to our former holdings that in arson cases the title to the property burned is rarely an issue, but in the present case the State evidently undertook —as it had a right to do—to prove ownership as alleged by a record title, and having attempted to do this the State was bound by the rules of evidence regarding the documents offered. The chain of title into McNabb and McLean was sought to be shown by certified copies of conveyances and other instruments which were of record in the deed records of Stephens county, Tex. Objection was interposed that said copies had not been filed and three days' notice given as required by article 3726, R.C.S., as amended by Acts 1927, 1st Called Sess. c. 73 § 1, Vernon's Ann.Civ.St. art. 3726. The objection was overruled and the evidence admitted. This was error. Article 704, C.C.P., provides: "The rules of evidence prescribed in the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions when not in conflict with the provisions of this Code or of the Penal Code."

The following cases hold that under the provisions of article 704, C.C.P., the requirements of article 3726, R.C.S., as amended are controlling in criminal cases. Gould v. State, 61 Tex.Cr.R. 195, 134 S.W. 695; Speers v. State, 80 Tex.Cr.R. 421, 190 S.W. 164; Allison v. State, 14 Tex. App. 402; Graves v. State, ...