Zepeda v. State

• Citation: 139 S.W.2d 820
• Decision Date: 08 May 1940
• Docket Number: No. 21044.,21044.
• Parties: ZEPEDA v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

139 S.W.2d 820

ZEPEDA v. STATE.

No. 21044.

Court of Criminal Appeals of Texas.

May 8, 1940.

Commissioners' Decision.

Appeal from District Court, Falls County; Terry Dickens, Judge.

Sederico Zepeda was convicted for arson, and he appeals.

Reversed and remanded.

Robert D. Peterson, of Marlin, for appellant.

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

KRUEGER, Judge.

The offense is arson. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant's first complaint is that the trial court erred in declining to instruct the jury to acquit him. He bases his contention upon two grounds: First, because there is a variance between the allegations and the proof. In the indictment, it is charged that appellant burned the house of Tony Verecruz, and the proof shows it to have been the house of Antonio Veracruz. However, there was ample proof to show that while the owner's given name was Antonio, he was known and frequently called Tony. We are of the opinion that the letter "e" after the letter "r" in his surname instead of the letter "a" is unimportant, inasmuch as the names are idem sonans. See Rape v. State, 34 Tex.Cr.R. 615, 31 S.W. 652; Branch's Ann.Tex.P.C. Secs. 22 and 23.

Second, because the State has failed to prove the corpus delicti. After a careful examination of the record, we are inclined to agree with him. To establish the corpus delicti in arson cases, it is necessary to show (a) that the house was designedly set on fire, and (b) that the accused did it or was criminally connected therewith. Now, let us see just how the State sought to comply with the requirements of the law in this respect. First, by offering in evidence an extra-judicial confession which appellant repudiated in all of the material parts. Second, that he was seen at or near the house some five or six hours prior to the time the fire was discovered, and third, by the evidence of some Mexican woman at whose house he appeared in the early part of the night. The State undertook to prove by this Mexican woman that on the night in question the appellant came to her home and borrowed a bottle of coal oil. She failed, however, to so testify. She was then asked if she did not so state to the grand jury. This she denied. Thereupon the State claimed a surprise, and the District Attorney took the witness-stand and testified, without objection on the part of the appellant, that she gave such testimony before the grand jury. The impeachment of the witness did not get the State out of the serious situation into which it was led by its own...