Ward v. State

The offense is accomplice to murder; the punishment, confinement in the penitentiary for 35 years.

Chapters 1 and 2 of Title 17 of the Penal Code relate to arson and to other wilful burnings. Art. 1325 of said Chap. 2 reads as follows: "Where death is occasioned by any offense described in this and the preceding chapter the offender is guilty of murder."

Appellant was convicted as an accomplice to the murder of J. H. Van Zan, the prosecution having proceeded under Art. 1325, supra. The proof on the part of the State was, in substance, as follows: The brother of appellant operated a grocery store in a building belonging to J. Q. Crow. Appellant, who was employed by his brother, acting through Lee Ogburn, procured Tom Burks and Fox Duckett to burn the building, in order that he might collect the insurance that was carried on the stock of goods. In consummating the arson, the principals used a great quantity of gasoline, which appellant and Ogburn furnished. The building was burned at night after other places of business in the vicinity had been closed. In the explosion the deceased, who occupied a room above the store, was killed. Also the explosion occasioned the death of both principals. Neither appellant nor his brother had any control over the second story of the burned building.

In the consummation of the arson neither appellant nor the principals had any motive to kill deceased or any other person. The testimony excludes the idea that the principals knew, or should have known, that any person was in the building at the time the arson was consummated. Appellant denied any knowledge of the fact that deceased occupied a room above said store; and there is no evidence in the record that he had such knowledge.

Testifying in his own behalf, appellant denied that he had induced Ogburn to employ the principals to commit the arson. In short, his testimony, if believed, completely exonerated him.

As has been observed, the punishment assessed against appellant was 35 years. The punishment for arson is not less than two nor more than twenty year. See Art. 1314, P. C. It is appellant's contention that under the terms of Art. 73, P. C., he could receive no greater punishment than that provided for in cases of arson. We quote said Art. 73, as follows:

"If in the attempt to commit one offense the principal shall by mistake or accident commit some other under the circumstances set out in article 42, 43 and 44, the accomplice to the offense originally intended shall, if both offenses are felonies, receive the punishment affixed to the lower; but if the offense designed be a misdemeanor he shall receive the highest punishmnt affixed to such misdemeanor, whether the offense actually committed be a felony or a misdemeanor."

In considering appellant's contention it is not necessary to note the provisions of Arts. 43 and 44, P. C. We quote Art. 42, P. C., as follows:

"One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed."

Under the evidence, it would appear that, under the terms of said Art. 73, when construed in connection with the provisions of Art. 42, supra, appellant's contention should be sustained, and that the punishment for the alleged offense could not properly exceed twenty years confinement in the penitentiary.

Appellant brings forward several bills of exception in which he complains of the action of the court in permitting the State to prove by the wives of the deceased principals confidential communications made to them by their respective husbands, showing the guilt of said principals. Said bills of exception reflect error under the holding of this court in Pace v. State,135 S.W. 379. We quote from the opinion in that case as follows:

"Appellant offered to prove by Mrs. Dick Cain, widow of one of the parties to the homicide, that her husband told her that he had killed the deceased. It is unnecessary to state the details of the testimony offered through this witness. Cain, it seems, had been tried for this same offense, and had subsequently died. We are of opinion that the court did not err in excluding her testimony. The principle involved in this question has been decided adversely to appellant, we think, in all the cases of this state where the question was raised. Matters of this sort occurring between husband and wife are privileged, and cannot be used, even though one of the spouses be dead. For a review of the authorities see Gross v. State (decided at the present term of the court) 135 S.W. 373."

We quote Art. 714, C. C. P., in part, as follows:

"Neither husband nor wife shall, in any case, testify as to communications made by one to the other, while married; nor shall they, after the marriage relation ceases, be made witnesses as to any such communication made while the marriage relation existed, except in a case where one or the other is prosecuted for an offense; and a declaration or communication made by the wife to the husband, or by the husband to the wife, goes to extenuate or justify an offense for which either is on trial."

The judgment is reversed and the cause remanded.

Reversed and remanded.

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.