Kline v. State , 78 Tex. Crim. 609 ( 1915 )

Appellant was convicted of arson, and his punishment assessed at the lowest prescribed by law.

He has several bills of exceptions. The State objects to these, claiming they are wholly insufficient to authorize or require this court to consider them. As a sample of them, we will state the substance in full of his first bill, quoting part:

It gives the style and number of the cause, the court and term, and states that upon the trial the State offered in evidence this letter:

"Henrietta, Texas, August 17th, 1914. Mr. C.W. Martin, Omaha, Neb. Dear Sir: Enclosed you will find a check, $25.00, the balance due on the Insurance Policy of our school. I have had great difficulty with our school in order to get it on a running basis, and hope by the first of November to be able to have a good little school for our children. I have a great obstacle tocontend with, or we few Catholics have here, as we are surroundedby Protestant bigots and they seem to hate a Catholic school andhave done all in their power to check us. However, I hope with God's grace and help we will be able to overcome this prejudice. Thanking you for the favors you have extended us, and with best wishes, I am

(Ex. No. 45.) Yours in X D, Henrietta, Texas, Box 273. Rev. Philip J. Kline."

That he objected to it being introduced in evidence, and especially to that part which we have italicized above, on these grounds: (1) It was wholly irrelevant and immaterial; (2) it did not prove or tend to prove any issue in the case; (3) it was highly prejudicial to his rights. That the court overruled his objections and permitted the letter to be read in evidence to which he excepted.

The court approved it with these "qualifications and conditions: The objections urged in this bill were made at the time the district attorney was reading said letter to the defendant on cross-examination, while said defendant was testifying in his own behalf, and before said letter had been offered in evidence by the State; before said letters, including this one, was offered in evidence the following proceedings were had, while the defendant was still testifying in his own behalf on redirect examination by Hon. R.E. Taylor, attorney for defendant: Mr. Taylor, after interrogating the defendant about the amount of improvements he had placed on the burned building, asked the following questions: Q. State whether or not you now say, since you have gone over and read these letters, about what you would say was the amount of money in the aggregate that you spent on this building. A. I would figure between $2500 and $3000. Mr. Taylor: I want to offer in evidence the letters you read here. (It is claimed by counsel for defendant that this offer was made for the purpose of showing his expenditures on the building only; and I accept his version of his offer.) Said letters, including the one here in question, was thereupon offered in evidence, and read to the jury by district attorney. This qualification applies also to all the other letters introduced."

The rules prescribing the requisites of bills of exceptions have been so long and clearly established and reiterated again and again in the books and decisions that we will not again state or quote them here. We merely will again cite some of the cases and the authorities on the subject. Sec. 857, p. 557, White's Ann. C.C.P., and Sec. 1123, p. 732; James v. State, 63 Tex.Crim. Rep.; Conger v. State, 63 Tex.Crim. Rep.; Ortiz v. State, 68 Tex. Crim. 524, 151 S.W. Rep., 1058; Best v. State, 72 Tex. Crim. 201, 164 S.W. Rep., 996; Arnold v. State, 74 Tex. Crim. 269, 168 S.W. Rep., 122. Measured by these rules there can be no question but that this bill is so wholly deficient as not to authorize or require this court to consider the point attempted to be raised by it.

No facts are given to enable us to understand whether the ruling is correct or not. It sets out none of the proceedings so that we can tell anything about it. All it tells is the State introduced said letter in evidence over his said objections. (1) How or why it was irrelevant or immaterial is in no way shown or intimated by the bill. (2) It in no way shows what "any issue in the case" was, so we can possibly tell whether or not it tended to prove them or any of them. (3) It in no way shows how or why it wrongly prejudiced his rights. A mere assertion by him of said several objections in no way shows or tends to show they or any of them are true or good. We are forbidden by the rules to go to the record or statement of facts to aid or defeat his bill. It, of and within itself, must give us all necessary information. The qualification of the judge controls the bill, and it in no way aids, but is against his bill. It shows appellant himself regarded the letter as material and relevant, and as tending to prove some issue in the case, because he introduced it in evidence before the State did, and before he objected to the State doing so. All pertinent and relevant evidence, if incriminating, necessarily injures an accused's rights as tending to show him guilty, or rebut some claimed defense he may assert. That is the very reason it is admissible, and should be introduced. It we could resort to inferences, which the rules forbid, and judging by appellant's brief we might infer, appellant thought the jurors might not be Catholics but "Protestant bigots" and influenced against him by his particular language in his letter specially objected to. But if so, the bill in no way shows it, nor that the jurors are not Catholics. It shows nothing on the subject. Nor does the record otherwise show that any or all the jurors were Protestants, whether bigots or not, or that they were not Catholics.

But suppose we should consider the bill. Then it must be considered in the light of the whole record. It would be but fair to both sides to do this if it is to be considered at all. Then what do we find the record to show in connection with this bill? We will state some of the salient features which are in no way stated by the bill.

The indictment charged that appellant burned his own house, itbeing insured at the time. The testimony showed it had been an old school building of the City of Henrietta long since abandoned, and unoccupied for any purpose, years before, and all the time it was owned by appellant, and at the time it was burned. That he bought it and the more than two blocks of ground on which it was situated from said city about two years before it was burned, for $2200, paying only $200 cash, and giving his three notes in about equal amounts for the balance due in six, twelve, and eighteen months thereafter. That during the time he owned it he made certain alterations in the internal arrangement of the building at a cost claimed by him to be about $2500 to $3000. These alterations by no means added the costs thereof to the value of the building, for one of the doctors to whom appellant offered to sell it for a hospital, very shortly before it was burned, testified said alterations injured the building for hospital purposes. It was shown appellant offered to sell it to some doctors, at first pricing it to them at about $6000. They declined to buy at that price. One real estate agent testified that $2500 was a fair market value for the building and ground at the time the building was burned. Mr. Peninger, Assistant State Fire Marshal, who talked to appellant very soon after the fire, testified appellant then told him he had offered to take $3500 from the doctors for the building and ground for a hospital, and his faint recollection was, appellant also at that time said the ground alone, without the building, was worth $2000 to $2500. Appellant did not deny any of this. That in order to get a loan on said building and ground from the Marquette Life Insurance Company for about $1800, which he did, on March 1, 1913, he took out a fire insurance policy in his favor on said building from a local agent at Henrietta in the Commercial Insurance Company for $2500 with loss payable to said life insurance company to also secure it in said loan, and that one year later, March 1, 1914, he had that policy renewed for another year. That on March 19, 1913, he also for himself insured said building for three years in the Catholic Mutual Relief Society of Omaha, Nebraska, through its secretary, Mr. Martin, at Omaha, for $8000 additional. Said relief society was exclusively owned and controlled by bishops of the Catholic church, and Mr. Martin was a Catholic. Appellant was a Catholic priest, and had resided at Henrietta and had his home and church building and organization, and ministered there for about five years before and at the time of said fire. The evidence tends strongly to show, if it does not clearly do so, that appellant did not tell either of said insurance companies at the time he took out said insurance policies, and renewed said $2500 one, of the insurance he was taking out from the other company, and that neither company, nor any agent of either, had any notice or knowledge thereof until long after said fire. That when appellant was first interviewed by Mr. Peninger and others soon after said fire he repeatedly and specially and positively stated to them that he had no insurance whatever on said building except said $2500 policy, and that when said house was burned he was in Ohio, telling particularly the route and railroad he went and the cities he passed through and a certain priest he had seen in Ohio on the trip. All his said statements were conclusively shown to have been false. Mr. Easley, the adjuster for said Catholic Relief Society, swore that when he first saw appellant after the fire appellant told him he had no insurance whatever except in said Catholic Relief Society, and he found out about said $2500 policy later. Said building was shown to have been burned — entirely consumed by fire — just after nightfall on Friday, October 9, 1914. The evidence was wholly circumstantial, but tended very strongly, if it did not conclusively, show that appellant himself burned his building, at least it was amply sufficient for the jury to so believe and find. His defense was alibi.

Evidently the State's theory and contention was, that appellant burned his own building to get said very large and excessive amount of insurance, and that his scheme was, even before the fire, to represent to Mr. Martin, the secretary of said relief company, a Catholic, and prepare and induce him to believe, that when he himself should burn it, it was not he, but some "Protestant bigot" — his or his church's enemy; and the State's further theory and contention was, that also after the fire he continued such representations to thereby induce said Martin, and relief association, to pay him said $8000 insurance before said Martin or said relief society knew of said other $2500 policy, or suspected him of burning his house to get the insurance. In other words, the State's theory and contention evidently was, that appellant was attempting to divert suspicion from himself by false representations both before and after the fire — clearly fabricating his defense, or attempting to do so.

Under these issues, if we could consider his bill, clearly said letter was admissible as tending to show his attempted fabricated defense, and his attempt to divert suspicion from himself, and also induce said Martin and relief society to pay him said $8000 before they could learn the full truth. This evidence was just as admissible as was his false statements that he was in Ohio when his house burned, thereby attempting to falsely fabricate an alibi. Barnes v. State, 43 Tex.Crim. Rep.; sec. 1052, subdiv. 6, Wh. Ann. C.C.P., and authorities there cited; 2 Wh. on Crim. Ev., pp. 1752-1753 and p. 1485; secs. 1070 and 1072, Wh. Ann. C.C.P., and authorities cited. All the authorities are to the same effect. The statement of facts shows appellant himself testified, "personally I do not think there was any prejudice or ill-feeling towards me as a Catholic priest before this fire. I do not think there was any prejudice or ill-feeling here towards the Catholic church; I should not think there would be." The jury certainly were not in the slightest influenced by his said language in said letter, even if it should be held inadmissible, for they assessed the lowest penalty authorized by law.

What we have said and held as to appellant's first bill equally applies to his second, and others objecting to letters.

Appellant's third bill shows that while the district attorney was commenting on one of his letters in evidence he said he wondered if appellant did not know it was a violation of the Federal law to send it through the mail. Appellant objected to this. The court promptly sustained his objection, and instructed the jury not to consider said argument. This presents no error. Miller v. State, 31 Tex.Crim. Rep.; Hatcher v. State,43 Tex. Crim. 239; Martoni v. State, 74 Tex.Crim. Rep., 167 S.W. Rep., 349, and other cases there cited.

The district attorney had the right to comment as he did on appellant's letter and his testimony as complained in appellant's fourth bill.

We must assume, and it is no doubt a fact, that the court prepared his charge, and furnished it to appellant's attorneys before the argument and before he read it to the jury, as the law requires. They had ample opportunity to make objections thereto in writing as the law also requires. They made none. However, while said letters were being introduced in evidence they "verbally requested the court to limit said letters and the matters contained therein for the purpose for which the same were admitted." The court then informed them, if they would write such charge he would give it to the jury. They did not write, nor request such charge in writing. Appellant's bill on this subject does not indicate what limit should have been placed on the letters, etc. Clearly under the law as it now is — not as it formerly was — the burden is not wholly on the judge, but is also on the appellant and his attorneys to see that a correct charge is prepared and given. It appears to us, that even if any charge on the subject should have been given at all, then it was appellant's fault and not the court's that it was not given, and as the matter is presented no error was committed.

Appellant complains of the court's refusal to let Mr. Coughanour answer a certain question. The bill in no way shows what his answer would have been, and hence presents no error even if the question had been such as was proper for him to have answered.

It was shown that appellant had a clergyman's certificate from the railroads. This authorized him, when purchasing a ticket, by filling out a blank, giving the name of the place to which he wanted the ticket and signing his name, to get the ticket at half price, the selling ticket agent stamping on the back of both ticket and stub the place and date of the purchase. He would keep the stub or application and present that and his ticket when the conductor or train auditor would collect tickets or fares. The conductor and auditor had to and did, at the end of their runs, send to the proper railroad officials reports of these stubs and tickets, and all other tickets, and the tickets and stubs with them, indicating the train and time such were used on their trains. The State procured, produced, identified and introduced in evidence, among others, appellant's stubs showing that he purchased at Dallas a ticket from Dallas to Bridgeport October 8, 1914, on the Rock Island Railroad. That on the same day at Bridgeport in his stub 41, he bought another ticket from Bridgeport to Bowie from the same railroad. Bowie is where said railroad and the Fort Worth Denver cross. The Rock Island does not run from Bowie to Henrietta; the Fort Worth Denver does. That on the night of October 8th, after midnight, which would make it in the early morning of October 9th, — on his stub 42 he bought at Bowie from the Fort Worth Denver, a ticket from Bowie to Henrietta. The Rock Island night train from Dallas through Fort Worth to Bridgeport arrived at Bridgeport, schedule time, 11:45 p.m. and remained there five minutes, and reached Bowie after midnight — more than an hour after leaving Bridgeport. The ticket sold to appellant on stub 42 was sold in the early morning of October 9th for train No. 7, north or west bound, which was due to leave Bowie at 1:55 a.m. on the morning of October 9th and would arrive at Henrietta about an hour later, and was used on that train as the evidence clearly shows. Night trains passing through Henrietta and Bowie south or east are shown to do so in the early morning after midnight. The M., K. T. — Katy — Railroad is shown to run from Wichita Falls through Henrietta, and to and through Ringgold on to Fort Worth. Ringgold is where the Katy and Rock Island cross. The exact distance between Bridgeport and Bowie, and Bridgeport and Ringgold, and Bowie and Henrietta, and Henrietta and Ringgold, are not given, but clearly such data is given, which shows these distances are short — taking from a short time over to under an hour for trains to run. Neither is schedule time for trains passing through Henrietta south or east on the Katy at night given, but such data is given as satisfies us they, like trains on said other railroads pass through in the early mornings — after midnight. Appellant's stub 44 and ticket show he bought and used, on October 10th, a ticket from Ringgold to Bridgeport, and stub 43, a ticket on October 11 from Bridgeport to Fort Worth. All these canceled stubs, 40, 41, 43 and 44, the canceled tickets accompanying them, respectively, were procured from the Rock Island Railroad and stub 42 from the Fort Worth Denver, by said State's witness Peninger, who swore that when he told appellant he would or had procured them, that appellant said "they did not exist" that "there were no such tickets."

There is no merit in appellant's last two bills to Mr. Lingenfelder's testimony which shows any reversible error. Besides what he testified to is abundantly proven by other trainmen and appellant himself, to which there was no objection.

As stated, appellant's defense was alibi. When he first talked about the burning of his house after the fire he told several parties positively he was in Ohio at the time of the fire. Later that he was in Fort Worth at the time. His attorneys now claim that he was in Bridgeport. At first after the fire he likewise positively told those inquiring about said $2500 policy that that was the only insurance he had, and to those inquiring about the $8000 insurance in the Catholic Relief Society, that that was the only insurance he had. Both his statements that he was in Ohio and about his insurance, were conclusively shown to have been false. If the jury had believed his testimony on the trial, that he was in Fort Worth when the fire occurred they would have acquitted him. They were clearly justified, from all the evidence, in not believing him, but to believe, as was in effect demonstrated by the evidence, that he was in Henrietta and himself set fire to and burned his house to get said insurance. We deem it unnecessary to further state the testimony. We have carefully read and studied the record and statement of facts more than once, and are thoroughly convinced that the evidence is clearly sufficient to sustain the verdict.

The judgment will be affirmed.

Affirmed.

ON REHEARING. February 2, 1916.