Taylor v. State, 18986.

• Decision Date: 02 June 1937
• Docket Number: No. 18986.,18986.
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Criminal Appeals

Page 681

106 S.W.2d 681

TAYLOR v. STATE.

No. 18986.

Court of Criminal Appeals of Texas.

June 2, 1937.

Rehearing Denied June 25, 1937.

Appeal from District Court, Collin County; F. E. Wilcox, Judge.

B. B. Taylor was convicted of murder, and he appeals.

Affirmed.

J. W. McCullough, of McKinney, and Baskett & Parks, of Dallas, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for murder, punishment assessed being twenty years in the penitentiary. The charging part of the second count of the indictment, and the only count submitted to the jury, is as follows: "* * * that on the aforesaid date in the aforesaid state and county B. B. Taylor did then and there unlawfully set fire to a house then and there situate, occupied by and controlled by J. M. Craker, and while in the perpetration of arson did then and there set fire to said house and did then and there and thereby cause J. M. Craker, who was then and there in said house, to be burned by means of said fire, so that he, the said J. M. Craker, was killed by reason thereof, and departed this life because of the injuries inflicted upon him by said fire; and the said B. B. Taylor did then and there with malice aforethought kill said J. M. Craker by said means, and that said killing and murder was committed while the said B. B. Taylor was so engaged as aforesaid."

Said count is attacked upon the ground that it attempts to allege a killing which occurred in the perpetration of arson, and that said latter offense is not sufficiently charged, in that there is an omission of an averment that the house was "burned," the statutory definition of arson being that it is the "wilful burning of any house," etc. Article 1304, P.C.

We think Jones v. State, 53 Tex.Cr.R. 131, 110 S.W. 741, 126 Am.St.Rep. 776, is a complete answer to the criticism of the indictment. From the similarity in averments one is led to think the pleader must have had the Jones case before him when he drew the present indictment.

Another attack upon the indictment is because it omits to allege that appellant "voluntarily" killed deceased, the criticism being based on the fact that our present definition of murder is "Whoever shall voluntarily kill any person within this State shall be guilty of murder." Art. 1256, P.C. (as amended by Acts 1927, c. 274, § 1 [Vernon's Ann.P.C. art. 1256]).

It was held in Crutchfield v. State, 110 Tex.Cr.R. 420, 10 S.W.(2d) 119, that an averment that the killing was done "with malice aforethought" was sufficient. See, also, Landers v. State, 114 Tex.Cr.R. 352, 25 S.W.(2d) 868; House v. State, 128 Tex.Cr. R. 404, 81 S.W.(2d) 708. It will be noted that the present indictment alleges that the killing was upon malice aforethought.

Chapter 1 of title 17, P.C. (article 1304 et seq., as amended [Vernon's Ann.P.C. art. 1304 et seq.]), relates to the offense of arson and chapter 2 of said title (article 1317 et seq.) to other willful burnings. Article 1325, P.C., found in said chapter 2, reads as follows: "Where death is occasioned by any offense described in this and the preceding chapter the offender is guilty of murder." The learned trial judge recognized the applicability of said article under the averment in the indictment and proven facts and embraced the law of said article in his charge.

Bill of exception No. 1 brings forward a complaint because appellant's application for continuance was overruled. The application was based on the absence of a witness whose name was stated to be Norman Sappington. Process for the witness was not obtained until three days before the trial. The question of diligence arises, but we waive discussion of it, as the bill may be disposed of on another ground. It was claimed in the application that Sappington would testify that he was with appellant on the night the offense was committed, and that appellant was not in the village of Lavon during said night; in other words, it was proposed to prove an alibi for appellant by said witness. The record shows that in three different places in appellant's own testimony he gave the name of the party claimed to have been with appellant, not as Norman Sappington, but as Sappington Harris, or Norman Sappington Harris. Appellant very positively stated that the proposed witness said "his last name was Harris." No process was ever issued for the person named by appellant as having been with him on the night in question. Under the circumstances, no error appears in refusing the continuance.

Bill of exception No. 2 relates to criticism of the indictment, which question has already been disposed of.

Clifton Vansickle, an accomplice witness, testified that on the day preceding the offense appellant approached witness about helping appellant burn a house, saying it was easy money; that witness refused. On the night of the same day witness was considerably intoxicated and appellant put him in appellant's car at Greenville, stopped at a filling station and bought some coal oil, and put it in an empty whisky bottle and drove away from Greenville towards Farmersville. Witness then describes in a way to be expected from a drunk man the driving and turning of the car by appellant until he finally stopped at some point which witness could not definitely locate. He said appellant got a tow sack, poured the coal oil on it, and then had...