Massey v. State

• Decision Date: 15 February 1950
• Docket Number: No. 24556,24556
• Citation: 154 Tex.Crim. 263,226 S.W.2d 856
• Parties: MASSEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 856

226 S.W.2d 856

154 Tex.Crim. 263

MASSEY v. STATE.

No. 24556.

Court of Criminal Appeals of Texas.

Feb. 15, 1950.

Blalock & Hardage, Texarkana, Bryan Blalock, Texarkana, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

McCall was the owner of a frame building situated just outside the city limits of the city of Texarkana. Appellant operated Burkhalter's Drive-in Cafe in the building, and owned the furniture and Fixtures. McCall had leased the building originally to Rice, who assigned the lease to Treadway, who, in turn, assigned to Chapman. Chapman had then assigned the lease to appellant and sold him the furniture and fixtures for $2,000--that is, $250 cash and a note for $1,750. Appellant obtained a fire insurance policy on the furniture and fixtures for $2,000, with loss payable to Chapman. Appellant acquired the cafe some time in September, 1948, and endeavored to secure a license to sell beer therein. Being unable to secure the license, he offered to sell to Mrs. Bell, an employee of the cafe, for the same amount and under the same conditions that he had purchased the cafe. Mrs. Bell agreed to buy provided a license to sell beer could be obtained. A license was refused her and the deal was not consummated. Appellant operated the cafe until about the 15th day of October, or four or five days before the fire, at which time he closed up the business, realizing he could not make a success of it without a license to sell beer. At that time he owed the $1,750 to Chapman and a month's rent of $50 to McCall. Up until a few days before the cafe was closed, appellant lived in the building. About that time and while negotiating the sale to Mrs. Bell, appellant moved from the building and rented a room in the city. This is the fact situation existing at the time of the fire on October 20, 1948.

Scott, a patrolman in the city of Texarkana, discovered the cafe on fire, as he says, 'around 2 or 2:30 * * * somewhere up in the morning.' He was not more specific about the exact time. At that time, he testified, 'the fire was burning out the left side of the building from the front, the east side.' He reported the fire to the fire department.

Benjamin, chief of the fire department, testified that it was 'sometime after 3 o'clock in the morning' when the fire department arrived at the scene of the fire and that when he got there 'the entire rear of the Drive-in had burned * * *. The fire was in the back of the building when I got there.'

Evans, a highway patrolman, was present at the fire, and some four or five days thereafter he took some pictures of the burned premises, as to which he testified: 'I don't know whether the debris had been cleared off the floor,--there wasn't anything left on the floor except just in this condition here. When I went out to take the pictures the floor appeared to have been burned, some of it,--trails or sections had been burned in the floor, and these pictures pretty well show that.'

The record before us does not reflect that the pictures referred to were introduced in evidence.

Smith, a special agent of the National Board of Fire Underwriters, visited the scene of the fire on the 7th or 8th of November, 1948, or about eighteen days after the fire, and made an investigation to determine its origin. Whether the predicate offered for the testimony of this witness was sufficient to qualify him as an expert in such matters is not before us, inasmuch as no bill of exception has been brought forward complaining of his testimony because of an insufficient predicate. According to Smith's testimony, the kitchen, or rear, portion of the building was practically burned away; the front of the building, though badly burned, was still standing, the floor of which was burned in spots or trails, We quote from his testimony, as follows:

'I am familiar with the type of burning caused by inflammable liquids on the floor and have seen numerous instances of it. If you have asphalt drops, composition roof drops, it would be in drops; if a liquid was spread on the floor that spreads out more or less in a trail. The liquid will go to a certain line or spot and that will be irregular. The liquid burns, alcohol, whiskey or anything, will burn to the edge, and where the floor is not saturated with the liquid it will not burn. It might burn later but the floor saturated by the liquid will burn first. As to whether the floor will burn in that area, it will depend on the type of liquid used and also on how much resin was in the pine, and whether or not burning continued after the accelerant had has burned itself out.

'In this instance, roofing material didn't drop. A few pieces of celotex had burned or dropped but it makes a different mark from liquid; but those showing there, I could not say the exact volitive (sic) used but I can describe the condition of the floor. The interior of the building was 20 by 30 feet, and in the north end was a double front door with windows on either side; and about eleven feet from the rear wall of the building there was a curved counter where some six or seven stools were, and on either side of the building, the west and east side, were booths, some three or four double booths, table between seats. Where these booths were, on that portion of the floor there were no trails at all, trails where I speak of where there was a curve or spotted burning. Right at the common wall between this building and the kitchen that has burned away completely, that spotted and trailed burning occurred on up in the front and the front door,--it was charred on the floor. There would be a section of perfect uncharred floor and then an area of charred floor with irregular outline. I noticed where some of the celotex had dropped and that was a distinct line and you could tell the difference, but it was burned all over it. There was areas all over where the floor was not burned bur spotted around it, up in the front in the middle of the building but not where the booths were or had been. Between the booths and the other side of the building there was an open space where customers would walk or dance. As to whether three was any furniture or equipment or anything along there that would have burned and made those spots,--I wasn't there immediately prior to the fire or after it, but the last time I was in there three years before the fire there was an open area and the booths on the side and counter.'

Witness was then asked to state: '* * * whether or not in your opinion these charred or burned places in the floor in their regular pattern were caused by some volitive (sic) fluid having been put on there and ignited.'

He replied as follows: 'Yes, I would say that there had been not only volitive (sic) fluid but some accelerated fluid was apparently on that floor in an irregular pattern. As to how it got ignited I don't know but it...