Burris v. State

BEAUCHAMP, Judge.

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

Appellant’s first complaint relates to the court’s action in declining to sustain his motion to quash the indictment, which, omitting the formal parts, reads as follows: “That Jack Burris on or about the 9th day of February, A. D., 1945, and anterior to the presentment of this indictment in the County of Hamilton and State of Texas, did then and there unlawfully and wilfully set fire to and burn the house of Mrs. Irene Cleveland and Mrs. Rowena Yates, there situated, * * The indictment in unmistakable language charges that the house in question belonged to the two ladies jointly and we deem the indictment sufficient. Art. 402, Vernon’s Ann. C. C. P., provides that where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them.

His next contention is that the evidence is insufficient to sustain his conviction which necessarily includes sufficient proof to establish the corpus delicti. With a purpose of determining this question, we have carefully reviewed the testimony adduced on the trial of this case as the same appears in the record. Appellant’s father was a farmer in West Texas who had moved to Hamilton and engaged in the grocery business. It appears that the family, including appellant, were not happy and the business was advertised for sale. On the early morning of February 9, 1945, the building, including the stock, was destroyed by fire. Appellant’s father had $6,000 insurance on the stock and this fact was known to him. Near an opening in the rear of the building there was an accumulation of boxes, matches, and other articles, some of which had become saturated with coal oil and made highly inflammable. Robert Speaker, who testified as a witness in behalf of the state, related the happenings just prior to and at the time of the fire. He, with appellant and three other boys and a girl, had something to eat at a cafe adjacent to or near the grocery store. During that time appellant walked out of the cafe and was gone about fifteen minutes. When he returned he was“breathing pretty hard and sort of nervous.” Ten or fifteen minutes later the party got into an automobile and drove out some distance. They had been gone about thirty minutes when they heard a fire alarm and returned. A conversation was carried on speculating as to what was burning. Some surmised that it was the court house, but appellant insisted that it was his father’s grocery store. After the fire this same witness was employed, together with appellant, as watchman over the burned premises. He testified that during this time appellant revealed to him that appellant had set the place on fire. Thereafter, appellant was arrested and placed in jail. He made a voluntary confession which appears to meet the requirements of the statute and it is admissible.

Appellant’s extra-judicial confession will not sustain a conviction unless the state is able to establish by evidence, beyond a reasonable doubt, the corpus delicti; that is, that the fire was of incendiary origin. Other than the foregoing statement, we find no fact or circumstance indicating that the fire was of incendiary origin. There is no evidence from any source that appellant was seen at or about the store on the night in question; nor is it shown that when he left the cafe he went in the direction of it. He told of tearing boards off of the window in order to set the inside afire. There is no evidence to show that this was done. There is no proof of tracks about the window to indicate that appellant or anyone else was there. In fact, there is an entire lack of evidence on the subject. For which reason the conviction cannot stand. See Underhill on Criminal Evidence, 3rd Ed., Sec. 36; Duncan v. State, 109 Tex. Cr. R. 668, 7 S. W. 2d 79; and authorities there cited, but it is contended that the confession may be used to aid the corpus delicti. See Black v. State, 137 Tex. Cr. R. 173, 128 S. W. 2d 406; Lott v. State, 60 Tex. Cr. R. 162, 131 S. W. 553; Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989. See also Tex. Jur., Vol. 4, page, 822, Sec. 23.

Believing that the evidence is insufficient to support the conviction, the judgment of the trial court is reversed and the cause is remanded.