Yarbrough v. State, 16200.

• Decision Date: 18 October 1933
• Docket Number: No. 16200.,16200.
• Citation: 67 S.W.2d 612
• Parties: YARBROUGH v. STATE.
• Court: Texas Court of Criminal Appeals

67 S.W.2d 612

YARBROUGH v. STATE.

No. 16200.

Court of Criminal Appeals of Texas.

October 18, 1933.

State's Rehearing Denied February 7, 1934.

Commissioners' Decision.

Appeal from District Court, Travis County; W. F. Robertson, Judge.

C. B. Yarbrough was convicted of murder, and he appeals.

Reversed and remanded.

See, also (Tex. Cr. App.) 56 S.W.(2d) 650.

W. A. Shofner and Ned Elnor Moore, both of Temple, Wright Stubbs and Emmett Shelton, both of Austin, and De Witt Bowmer, of Temple, for appellant.

James P. Hart, Dist. Atty., Hardy Hollers, Asst. Dist. Atty., and Lloyd W. Davidson, State's Atty., all of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for twenty-five years.

The trial was had in Travis county on a change of venue from Bell county.

We deem it unnecessary to set out the indictment, or to discuss appellant's motion to quash. The opinion is expressed that the offense is sufficiently charged.

In the afternoon of September 7, 1932, deceased, who was appellant's adopted daughter, was severely burned, from the effects of which she died in a few hours. It was the state's theory that appellant deliberately set fire to deceased.

As to motive, there was proof on the part of the state to the effect that appellant carried considerable insurance in his favor on the life of deceased. It was further shown that deceased had been frequently whipped by appellant, he having stated that she was not obedient. There was testimony on the part of the state to the effect that appellant had stated that he had to get rid of deceased on account of his wife, and that at one time he had endeavored to place deceased in some school or institution. Again, in an effort to show that appellant needed money, the state introduced witnesses who testified that appellant had executed some notes which were about to mature.

As to the circumstances surrounding the fatal burning of deceased, the proof on the part of the state was, in substance, as follows: Appellant and deceased were in appellant's garage. Hearing some one call for help, state's witness Tom Carpenter ran to the garage. Upon his arrival, he saw that there was a fire inside. Appellant was in the act of throwing the contents of a bucket on some object. As Mr. Carpenter entered the garage, appellant threw the contents of this bucket on deceased, which, upon striking her, created "a great flash." Appellant exclaimed: "My God, I have thrown the wrong bucket!" Appellant then picked up a bucket of water, which was near him, and, emptying it on deceased, ran to a hydrant for some more water, which he also threw on deceased. At the time Mr. Carpenter approached the garage, and before appellant threw the contents of the first bucket, deceased had been burned. Deceased ran into a neighbor's house. While appellant was in the yard, and after deceased had entered the house, she said: "Oh Daddy, what made you do it?" Immediately after deceased ran to the house appellant stated to Mr. Carpenter that he was working in the garage cleaning off his car preparatory to painting it; that deceased was helping him; that he had been using a blowtorch to burn the grease off of the wheels and other places where it had lodged; that he put the torch on the running board of the car, and placed a board from one fender to a barrel; that he was on this board preparing to wash the top of the car with gasoline which was in the bucket; that when he tried to move the bucket, the bail came out, turning the bucket over, and spilling the gasoline on deceased, and the lighted blowtorch. Appellant made substantially the same declaration to the sheriff of Bell county. According to the testimony of the sheriff, deceased stated to him after she had been taken to the hospital that she was helping appellant with the car when some gasoline exploded and burned her. State's witness Stratton, who testified that he was engaged to be married to deceased, said that he went to the hospital to see deceased, and that, while he was at the hospital, she said to him: "Oh why did he do it?" He testified that he asked deceased: "Who did it?" And that she replied: "Daddy did it." State's witness Mrs. Gregory testified that deceased talked to her about the burning immediately after it occurred. She said: "Doris told me immediately after this fire and while she was in Mrs. Mayfield's home and before she was dressed and before she was taken to the hospital, immediately after it happened, that she got burned because the gasoline turned over on her. She did not say that Mr. Yarbrough turned it over on her. She just said the gasoline turned over on her and that is the way she got her injuries." In the garage were the board, barrel, buckets, and blowtorch referred to in appellant's declarations.

Appellant did not testify.

The sufficiency of the evidence is challenged on the ground that the falsity of the exculpatory statements introduced by the state was not shown. The state answers that the physical facts in connection with the garage, the actions of appellant after deceased had been burned and the declarations of deceased afford circumstances sufficient to establish the falsity of appellant's declarations. It is contended by the state that it is not reasonable to conclude that appellant, who was a trained mechanic, was cleaning his car in the manner indicated in his declarations; the point attempted to be made being that a mechanic would not work with an open bucket of gasoline near a blowtorch, and, further, that he would not undertake to clean the top of a car with gasoline. Again, it is contended that appellant could not have reached the top of the car from a board placed on the fender and barrel in the manner described by him in his exculpatory statement. It is pointed out by the state that the testimony shows that appellant did not go in the house to see deceased after she was burned. In short, the state calls attention to testimony indicating that appellant was indifferent toward deceased, notwithstanding her mortal injuries. Deceased's declarations are pointed to as statements to the effect that appellant deliberately set fire to her. As stated, she said, "Oh Daddy, what made you do it?" Again, she said at the hospital, according to a state's witness, "Daddy did it." In connection with these circumstances, it is urged that the testimony touching motive should be considered as lending strength to the proof relied upon to meet the burden of establishing the falsity of the exculpatory declarations.

The significance of deceased's declarations as a charge against appellant is lessened by the fact that appellant had thrown the contents of a bucket of gasoline on deceased after she was already in flames. As stated, this act was immediately followed by the exclamation: "My God, I have thrown the wrong bucket!" See Ex parte Yarbrough (Tex. Cr. App.) 56 S.W.(2d) 650. Again, when such declarations are considered in connection with the further statement on the part of deceased that she was burned when the gasoline turned over on her, they cannot be taken as an unequivocal charge that appellant purposely set fire to her. The conclusion might reasonably be reached that deceased referred in the declarations relied upon by the state to appellant's act—which he declared at the time was due to a mistake—in throwing the bucket of gasoline on her. As to the physical facts and appellant's conduct after deceased was burned, it is not clear that the evidence touching such matters is necessarily inconsistent with the exculpatory declarations. However, we express no opinion as to the sufficiency of the evidence other than to say that a solution of the question is not free from difficulty.

In the light of the foregoing statement of the evidence, we consider the effect of the failure of the court to embrace in the charge an instruction to the effect that appellant's exculpatory declarations, having been introduced by the state, were to be regarded as true, unless disproved. The omission was called to the trial court's attention by proper written exception, timely presented.

It is well settled that, when the state has introduced a confession or admission of the accused containing exculpatory statements, it is ordinarily incumbent upon the court to instruct the jury that the exculpatory statements are regarded as true unless disproved. 24 Tex. Jur. p. 598; Pharr v. State, 7 Tex. App. 478; Forrester v. State, 93 Tex. Cr. R. 415, 248 S. W. 40, 26 A. L. R. 537, and authorities cited. However, the rule is not applicable in all cases. Jones v State, 29 Tex. App. 20, 13 S. W. 990, 25 Am. St. Rep. 715; Slade v. State, 29 Tex. App. 381, 16 S. W. 253; Casey v. State, 54 Tex. Cr. R. 584, 113 S. W. 534; Pickens v. State, 86 Tex. Cr. R. 657, 218 S. W. 755; Harris v. State, 103 Tex. Cr. R. 479, 281 S. W. 206. For example, the rule has been relaxed in cases where the accused on trial testifies before the jury and his testimony is in accord with the exculpatory features of his confession or declarations, and his defensive theory arising from his testimony and coinciding with his exculpatory theory advanced in the confession or declarations is fairly submitted to the jury in the charge of the court. Tex. Jur. supra; McKinley v. State, 104 Tex. Cr. R. 65, 282 S. W. 600. Again, it has been held that the rule is not applicable where the state does not rely for a conviction wholly upon the statement of the accused. Tex. Jur., supra; Tate v. State, ...