Rogers v. State

• Decision Date: 23 April 1913
• Citation: 159 S.W. 40
• Parties: ROGERS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 40

159 S.W. 40

ROGERS v. STATE.

Court of Criminal Appeals of Texas.

April 23, 1913.

Rehearing Denied June 18, 1913.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

John Rogers was convicted of arson, and he appeals. Affirmed.

T. R. Mears, of Gatesville, and Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of arson, and his penalty fixed at the lowest prescribed by law, five years in the penitentiary.

For a few years before August 27, 1911, F. B. Lam and W. L. Rogers were equal partners in two gins. They both lived, and said gins were situated, in the town of Oglesby, Coryell county, Tex. The gins were 150 yards apart. It seems that Lam ran one of the gins and Rogers the other. The mother of Lam was the sister of Rogers. Lam's father was a brother of the wife of W. L. Rogers. Appellant was 19 years of age in January, 1911. His home was then and all his life had been at his father's. His parents moved to Oglesby from a few miles in the country near thereto some four years before August, 1911, and had lived in Oglesby four years or more continuously before said last date. Some three weeks before August 27, 1911, Lam and Rogers had fallen out about their said partnership business. The state of feeling between them was very bitter each towards the other. It all grew out of and was connected with their gin business. On Sunday night August 27, 1911, the said gin-house which was run by said Lam was burned about 11 o'clock at night. It was worth from $6,000 to $8,000. The grand jury of Coryell county did not convene after said burning until January, 1912. On January 12, 1912, the grand jury began an investigation of said burning, and had a large number of witnesses summoned to appear at that time and they did appear at that time for that purpose.

Appellant was the second witness, it seems, the grand jury had before it on that subject. He was duly sworn, and testified as any other witness. He at first denied knowing anything about who burned the gin, or having anything to do with burning it, and denied being in the town of Oglesby at a certain well therein, and seeing certain persons thereabouts, and denied several other facts, afterwards sworn to in his written statement. The county attorney or some of the grand jurors then told him they in effect knew he was testifying falsely, but, if he would testify truthfully, they would forgive him, and not prosecute him for false swearing. Thereupon he admitted he had not been telling the truth, but would then do so. Then testified fully. His testimony was reduced to writing, and he signed and swore to it, in addition to having been sworn and testified orally. His written sworn statement is as follows: "I burned the gin myself on Sunday night after church and before midnight. I burned it by pouring a gallon can of coal oil on the floor and under the second gin stand from the east end of the ginhouse and by throwing a lighted match on said oil. After the oil began to burn, I threw the can out at the window under the suction shed, and ran out through the south door straight to my horse and buggy in front of the M. E. church in Oglesby, where I got in the buggy and drove straight to Virge Lawrence's place as fast as the horse could trot. After putting up my horse and buggy, I went to the house and woke up Virge Lawrence, and told him the gin was on fire. (We could see the fire from his house, which was about three miles westward direction from Oglesby.) Virge and his wife, my sister, got up and dressed and went to the fire. After they left, I hitched up again and went to the fire also. The ginhouse had fallen in when I got there. I got the can full of oil at Virge Lawrence's on the Saturday before the burning and took it to Oglesby, and hid it Saturday evening between the old livery stable and the little house just east. After church Sunday night following I changed my Sunday clothes at my buggy for a blue jumper and duck pants, and went down in front of the Stockberger store and to the public well of Oglesby, where I saw Leonard Stockberger, Ed Mooney, Cecil and Wood Graham, and Bob Stockberger. All that was there said between us was that Leonard asked me what I was doing there, and I replied that I was waiting for `Fatty Reid,' meaning Sam Reid. As soon as all of these boys had gotten some distance away, I got the above-mentioned can from the place where I hid it, went straight to the gin that was burned, and set the fire that burned the gin as stated above. I decided on the Friday before that I would burn the gin on Sunday night. After I hid the can as above stated on Saturday evening, I went through the gin to choose a place to set it on fire. After church the Sunday night of the fire and before I changed my clothes I told George Isbell, Jr., Reynold Bannister, and Floyd Campbell after they promised they would not tell that I was going to burn the gin. One of them told me it would be a dangerous thing to do. On the Sunday after the gin was burned I told the same boys that I had burned the gin. They were all together at the time. I burned the gin because I was mad at Frank Lam, the manager, because he would not pay me what I claimed he owed me for work I had done. This was the only reason. Nobody told me to burn the gin and I had talked with nobody about it except the three above named boys, nor have I since told anybody that I did it except the same three boys. I alone am to blame for the burning of the gin. I make all the above statements freely and voluntarily because the same is true, and with no promise on the part of any officer or any man except that of the district attorney that if I would tell the whole truth and nothing but the truth that he would recommend leniency. I understand this can be used in evidence against me. Johnnie Rogers." This sworn testimony was introduced on the trial of this cause. In addition to and independent of it, the state proved substantially and fully the same things by numerous witnesses. Some three or four witnesses testified that shortly before appellant burned this gin he told them that he was going to do so, and fixed said Sunday night as the time. He showed to one or more of the witnesses a can of oil that he had procured for that purpose. After the fire, he admitted to three or four witnesses that he had burned said gin, and when they, together with himself, were summoned before the grand jury, and before that too, he urged them not to give him away. In fact, the testimony without doubt clearly established that appellant burned the gin without reference to his own written testimony. His main or sole defense was insanity. The record in this case, as well as the statement of facts, is voluminous. We think it altogether unnecessary to further detail the testimony.

Appellant's first bill of exception is to the action of the court in overruling his motion for a continuance. It was sought on account of the absence of appellant's mother, who lived in Coryell county, but who was temporarily absent in Waco, McLennan county, and of his sister, Mrs. Amiott, who was a resident and lived in Waco, McLennan county. There is no question but that this was appellant's second application for a continuance. He first continued the case at the January term of the Coryell county district court. It appears that at that term both sides announced ready for trial. After proceeding with the trial for some time, a child of one of the jurors became very sick, and in accordance with the law the court permitted that juror, in company with a deputy sheriff, to go to his home in the country and see the child. After waiting a day or two, it became evident that the juror's child was too ill for him to leave and would probably die, and perhaps did. Appellant at the time he announced ready, when the case was called, stated that one of his material witnesses was absent, and that, if this witness did not arrive in time to testify, he would withdraw his announcement of ready, and would then make application to continue on that account. It had been some two or three days after this announcement and the proceeding to trial when this witness had still not arrived, and in the dilemma the case was in, and in order to avoid jeopardy, appellant then, with the consent of the state and court, withdrew his announcement of ready, and the case was continued on his application because of the absence of said witness. This presented some equitable matter for the court to consider in the second application, but it, as stated above, was unquestionably a second application when appellant sought a continuance on account of the absence of his mother and sister. The court in approving appellant's bill complaining of the action of the court in refusing his continuance qualified it by stating as follows: "(1) This was the defendant's second application for a continuance. (2) As to Mrs. Rogers, defendant's mother, I have to say that this was the third trial of this case. This had been tried for lunacy since indictment on complaint made by his father. At all previous trials including the lunacy trial, Mrs. Rogers, though present, did not testify as a witness. In view of such facts diligence would have required the defendant to take her depositions. (3) The doctor's certificate shows that Mrs. Amiott's affliction was also of some years standing, and must therefore have been known to the defendant and his counsel and clearly suggested the advisability of taking her depositions. While she had testified at the former trials of the case, her condition as stated by the doctor was no worse on the morning he visited her than it had been during the years she had been suffering from the infirmity. If it was, the doctor does not say so. He says `any undue exercise or excitement will aggravate her condition.' It occurs to the court that she could have appeared and testified without `undue'...