Lemley v. State

Krueger, Judge. Appellant was convicted of the offense of arson, and his punishment was assessed at confinement in the State Penitentiary for a term of five years. It was charged in the indictment, omitting the formal parts, that on or about the 27th day of August, 1935, J. S. Lemley did unlawfully and wilfully set fire to and burn the house of Rayford McNabb and W. P. McLean. The testimony shows that on the night of August 27, the appellant, Cleve Barnes, and a man by the name of Taylor went to the old E. Y. Jennings farm in Stephens County, Texas, and burned a house thereon situated which had been vacated by Mr. Oakley on the afternoon of said date. The State proved by J. W. Morrow, sheriff of Stephens County, that Rayford McNabb and W. P. McLean owned the land upon which the house was burned. Appellant objected to this testimony on the ground that it was oral and that the record would be the best evidence. If the title to the land had been in issue as in suits of trespass to try title, the rules of evidence as contended for by appellant would apply and the title papers would need to be produced or their nonproduction accounted’ for; but in the case of arson the title to the land is not a necessary issue to be adjudicated for the reason that one may have title to land and another may have the possession thereof in which event ownership may be alleged in either. Again a person may have title to land by inheritance or under the ten year statute of limitation in which event there would not be any title papers and proof of ownership would rest in parol. In the cases of Black v. State, 59 S. W. (2d) 168, and Nash v. State, 51 S. W. (2d) 689, this Court held that oral testimony regarding ownership and possession of property was receivable in arson cases. We therefore overrule the appellant’s contention. Appellant next complains of the introduction of certified copies of the deeds without being filed among the papers in the case for three days and notice given thereof. This is not regarded as showing any error because oral testimony offered by the State is deemed to be sufficient under the authority of Nash v. State, supra, to show that the burned house was the property of McNabb and McLean. The introduction of the certified copies of deeds became harmless. Appellant next contends that the deed executed by the Collector of Internal Revenue conveying said property to the Fed *151 eral Government and offered as evidence by him was sufficient to show the title to the alleged burned house to be in the Federal Government. His contention seems to be that such showing defeated the State’s case. Said deed shows upon its face that the Collector of Internal Revenue by summary proceedings sought to divest E. Y. Jennings of the title to the land upon which the house was situated. Under the authority of Clayton v. Rehm, 2 S. W. 45, such deed of itself would not show title to the property to be in the grantee. We quote from the opinion as follows: “ * *.* the deed of the tax collector, without proof of a compliance with all the requisites of the law necessary to call into exercise his authority to make the sale, is no evidence of title in the party claiming under it, * * Appellant did not offer any proof that the Collector of Internal Revenue complied with all the law necessary to call into exercise his authority to make the sale. To have held that said deed was a conveyance of the title to the property would necessarily have been a finding by the court that such deed did pass title and that all necessary legal proceedings by the Collector had been complied with, without any proof in support thereof. By bill of exception number one appellant complains because the State was permitted to prove that the appellant’s codefendant, Cleve Barnes, was a brother to Laura McNabb. While this did not tend to elucidate any issue in the case, yet we do not see how any injury resulted to the appellant by showing his relationship to some good woman. By bills of exception two and three appellant complains because the State was permitted to prove by A. W. Sechrist that after the house was set on fire appellant and Cleve Barnes ran away from the building; that after the officers had commanded them to halt and fired on them, Cleve Barnes shot at the officers with a shotgun. His objection to said testimony was that since appellant • was not in possession of the shotgun, it was irrelevant, immaterial, and prejudicial. It occurs to us that it was a part of the res gestae. Appellant and Barnes were acting together in the commission of the offense. The act of one to prevent the apprehension of the other or both was admissible as a circumstance showing guilt. See Jackson v. State, 103 Texas Crim. Rep. 318 (326). Bills of exception numbers four, five, six, and seven all relate to the introduction in evidence of the shotgun, which was carried by Cleve Barnes, and its exhibition before the jury. The testimony showed that appellant and his codefendant Barnes came to the premises armed for the purpose of resisting arrest and *152 making their escape in case they were detected in the commission of the offense. Hence the same was admissible. We have examined and considered all of the other bills of exception but fail to find that any of them disclose reversible error. Finding no reversible error in the record, the judgment of the trial court is affirmed. 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.