Wilson v. State

• Decision Date: 20 June 1934
• Docket Number: No. 16909.,16909.
• Citation: 74 S.W.2d 1020
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

74 S.W.2d 1020

WILSON v. STATE.

No. 16909.

Court of Criminal Appeals of Texas.

June 20, 1934.

State's Rehearing Denied October 17, 1934.

Commissioners' Decision.

Appeal from District Court, Wilbarger County; W. N. Stokes, Judge.

C. E. Wilson was convicted of conspiracy to commit arson, and he appeals.

Reversed and remanded.

Jesse Owens and J. A. Storey, both of Vernon, for appellant.

Ed L. Gossett, Dist. Atty., of Vernon, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is conspiracy to commit arson; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment, in substance, that on or about October 8, 1931, in the county of Wilbarger and state of Texas, C. B. Boydston, Dick Crabtree, and appellant unlawfully and willfully conspired, combined, and confederated and entered into a positive agreement with each other to willfully and unlawfully set fire to and burn the house of Clyde Hamm there situate.

Appellant owned a house in the town of Vernon. It was agreed between Boydston, Crabtree, and appellant that the house would be deeded to Boydston, and that thereafter Crabtree would burn said house in order that the insurance might be collected. In making the pretended conveyance to Boydston, it was appellant's purpose to have the title in the name of another in order that he (appellant) might not be suspected of committing the offense. Pursuant to the agreement between the parties, appellant conveyed the property to Boydston. Thereafter, on the 8th of October, 1931, Crabtree burned the house. The insurance was collected and divided between Crabtree and appellant; Crabtree receiving approximately $75. At the time the house was burned, a house belonging to Clyde Hamm, which was within 20 feet of the house appellant had deeded to Boydston, was completely destroyed by fire communicated from Boydston's house.

There was no proof that appellant at any time entered into a conspiracy with Boydston and Crabtree to burn Clyde Hamm's house. Bearing in mind that appellant is not charged in the present case with the offense of accomplice to arson, but with the substantive offense of conspiracy to burn the house of Boydston, we consider whether, in the absence of proof of an agreement to burn Hamm's house, this conviction can be sustained on proof of the fact that the burning of the house last mentioned resulted from the burning of Boydston's house.

Article 1622, Penal Code, reads as follows: "A conspiracy is an agreement entered into between two or more persons to commit a felony."

We quote article 1623, Penal Code: "The offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have so unlawfully combined."

Article 1624, Penal Code, reads as follows: "Before a conviction can be had for the offense of conspiracy, it must appear that there was a positive agreement to commit a felony. It will not be sufficient that such agreement was contemplated by the parties charged."

The substantive offense of conspiracy to commit a felony being complete when the conspiracy is entered into, it is a complete offense for which the parties can be prosecuted and punished. Rice v. State, 121 Tex. Cr. R. 68, 51 S.W.(2d) 364; King v. State, 86 Tex. Cr. R. 407, 216 S. W. 1091. It was essential to a conviction herein that the state establish that appellant and his coconspirators entered into a positive agreement to burn the house of Clyde Hamm, as charged in the indictment. We quote from 12 Corpus Juris, 627, as follows: "The purpose and object of a conspiracy must be proved as laid in the indictment."

In support of the text, among others, the following authorities are cited: Rabens v. United States (C. C. A.) 146 F. 978; State v. Loser, 132 Iowa, 419, 104 N. W. 337. Manifestly, proof that the parties entered into a positive agreement to burn the house of Boydston does not support the allegation in the indictment that a positive agreement was entered into to burn the house of Clyde Hamm.

The judgment is reversed, and the cause remanded.

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.

LATTIMORE, Judge.

The state moves for rehearing, and urges that our opinion nullifies and renders of no effect article 1308, P. C., which provides that, when fire is communicated to a house by means of the burning of another house, or some combustible matter, it is presumed that the intent was to destroy every house actually burnt; provided there was any apparent danger of such "construction." We observe in passing that the word "construction" makes no sense in this connection. An examination of the original enactment shows that the word "destruction" was then used.

It is alleged in this case that appellant...