Wilkerson v. State

• Decision Date: 21 October 1931
• Docket Number: No. 14113.,14113.
• Citation: 45 S.W.2d 201
• Parties: WILKERSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 201

45 S.W.2d 201

WILKERSON v. STATE.

No. 14113.

Court of Criminal Appeals of Texas.

October 21, 1931.

Rehearing Denied January 13, 1932.

Appeal from District Court, Smith County; Gordon Simpson, Judge.

J. B. Wilkerson was convicted of arson and he appeals.

Affirmed.

Gentry & Gray, of Tyler, for appellant.

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

HAWKINS, J.

Conviction is for the offense of arson punishment being assessed at two years' confinement in the penitentiary.

It is not necessary to set out the facts further than as they may be called for in the discussion of some of the bills of exception. It is sufficient to say that the testimony of the accomplice witness was amply corroborated, and all of the evidence together appears to leave no doubt of appellant's guilt.

The indictment contained two counts; one alleging that appellant was the owner of a house situated in the town of Lindale in Smith county, Tex., and which appellant is alleged to have willfully burned; the second count avers that appellant was the owner of a house which he burned, there being apparent danger that the safety of a house belonging to a person other than appellant would be endangered.

Bill of exception No. 1 recites that while the witness Burns was testifying the state was undertaking to prove by him that the building which was burned was covered by a policy of insurance. The court sustained objection that the insurance policy was the best evidence, whereupon the district attorney said, "We will at this time ask that the defendant produce the original policy. If he doesn't we are entitled to make our secondary proof." Whereupon the court stated that if the predicate was laid of course the testimony would be admissible; but sustained the objection at that time. The district attorney further said in the presence of the court and jury, "We have no way of making the defendant testify, or his wife, under the laws of this State, but we now request him to produce the policy and if he does not produce it, certainly it is the greatest motive that he could have would be to collect that insurance policy." The statements of the district attorney were objected to upon two grounds: First, that there was no allegation in the indictment that the house was burned in order to collect the insurance upon it; and, second, that the remarks of the district attorney were a direct reference to the failure of the defendant to testify, and also a challenge to the defendant to take the witness stand or suffer the consequences. That no allegation appears in the indictment charging that the house alleged to have been burned was insured appears to be immaterial. Whether the state was proceeding upon that phase of the statute or not, evidence that the house was insured would be material upon the question of motive. In regard to the second objection, it appears that the incident occurred during the development of the case and at a time when it was impossible to know whether or not the defendant would take the stand as a witness in his own behalf. We cannot regard the statement of the district attorney as a reference to the failure of the defendant to testify under these circumstances. This conclusion is supported by the following authorities. Bosley v. State, 69 Tex. Cr. R. 100, 153 S. W. 878; Gatlin v. State, 72 Tex. Cr. R. 516, 163 S. W. 428; Deal v. State, 99 Tex. Cr. R. 385, 268 S. W. 746, 269 S. W. 433; Wimberly v. State, 109 Tex. Cr. R. 581, 6 S.W.(2d) 120.

Bill of exception No. 6 relates to a similar incident with reference to a deed claimed to have been executed by the witness Kimble to appellant or his wife. What has been said regarding bill of exception No. 1 and the authorities cited in support of our conclusion relative thereto is applicable to bill of exception No. 6 and it will not be further discussed.

It was alleged in the indictment that appellant was the owner of the building which was burned. Bearing upon the ownership or control of the building, the state introduced two letters written from Fort Worth, Tex.; one addressed to G. G. Marchman at Lindale, dated February 15, 1929, the other addressed to T. G. Morris at Lindale, dated February 21, 1929. These letters were signed by Bert Wilkerson. The letters were unquestionably material touching the ownership and control of the property in question. As a predicate for the introduction of the letters, the state proved that appellant lived in Fort Worth and there went by the name of Bert Wilkerson. A deputy sheriff for Smith county was introduced as a witness, and the appearance bond of appellant in the present case was shown him, and the deputy sheriff testified that appellant and Mr. Gentry, his attorney, came in the office together, and that either appellant or Mr. Gentry, in appellant's presence, delivered the bond to the witness. This appearance bond was introduced for the purpose of using appellant's signature thereto as a standard of comparison to prove the execution of the letters heretofore referred to. No objection whatever was interposed to the introduction of the appearance bond, and no evidence was offered by appellant to the effect that he did not sign it in person. The state then offered two expert witnesses who testified, in substance, that in their opinions the signatures in the appearance bond and on the two letters were written by the same person, giving the reasons upon which they based their opinions. Objection was interposed when the letters were offered in evidence, upon the ground that it had not been sufficiently shown that appellant in person signed the appearance bond. The rule in this state seems to be well settled that the standard of comparison must be established either by the production of a writing or signature admitted to be genuine or by establishing its genuineness by clear and undoubted testimony. See Heard v. State, 9 Tex. App. 1. Other authorities to the same effect are collated under section 1411, Branch's Ann. Tex. P. C. We do not understand the rule to mean that the standard of comparison would be rejected because an issue might be made with reference to its genuineness. However, in this case, no evidence was introduced by appellant raising such an issue. The rule regarding the principle under discussion appears to be clearly stated in Ruling Case Law, Vol. 10, § 183, as follows: "When a writing is offered in proof as a standard, the court should first find as a fact that it is genuine, and the decision of the court as to the credibility of this preliminary evidence is conclusive, unless upon a report of all the evidence it is shown to be without foundation, or based upon some erroneous application of legal principles. And it seems that the handwriting used as a standard of comparison should be first established by direct proof of the signature, or other equivalent evidence, in order to avoid collateral issues tending to distract the minds of the jurors from the precise question before them. Purely circumstantial proof of the genuineness of a specimen writing must generally be strong, in order to make it competent to be used as a test paper."

The circumstances under which the appearance bond in question was delivered to the deputy sheriff appears to establish circumstantially at least that the signature upon the appearance bond was executed by appellant in person, and the court, under the rule just stated, was authorized in admitting it as a standard of comparison. Furthermore, the court properly admitted it under the provisions of our statute regarding bail bonds and the construction thereof by this court. Article 269, C. C. P. reads: "A `bail bond' is an undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation; it is written out and signed by the defendant and his sureties."

Subdivision 4, art. 273, C. C. P. is as follows: "That the bond be signed by name or mark by the principal and sureties."

In construing the foregoing statutes, this court in Walker et al. v. State, 109 Tex. Cr. R. 618, 6 S.W.(2d) 356, concluded that it was the intent of the Legislature that the "principal's signature or mark be made in person."

The opinion on this subject in Horn v. State, 68 Tex. Cr. R. 89, 150 S. W. 948, upon a casual examination, appears to support appellant's objection. However, a careful examination of that case fails to disclose under what circumstances the bail bond, the signature upon which was there used as a standard of comparison, came into the hands of the officers. It does appear that it was admitted over objection. The case of Phillips v. State 6 Tex. App. 364, cited as supporting the opinion in Horn Case, is not thought to be in point. In the Phillips Case, a letter was admitted in evidence as a standard of comparison, but later, upon objection of appellant, it was withdrawn from the consideration of the jury; yet, notwithstanding this, the court permitted the expert witnesses to use the signature on that letter which had been withdrawn as a standard of comparison in their testimony, which, of course, was an erroneous proceeding. In the present case, as heretofore stated, no objection was interposed to the receipt in...