
    ALLEN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 26, 1911.
    Rehearing Denied May 31, 1011.)
    1. Criminal Law (§ 829’=) — Appeal — Circumstantial Evidence — Repetition op Instruction.
    In a prosecution for arson where the coui't gave a full and complete charge on circumstantial evidence, there was no error in refusing to give a special charge requested on this phase of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    2. Criminal Law (§ 595) — Continuance-Absence op Witness.
    Where defense in a prosecution for arson was an alibi, a continuance because of the absence of a witness who would prove that accused was in a town other than that in which the crime was committed some two hours before the fire was properly denied, where the town was so near that defendant could have reached ‘ the place of the crime after he was seen by the witness in time to have committed it.
    [Ed. Note. — For other cases,, see Criminal Law, Cent. Dig. §§ 1323-1327; Dec. Dig. § 595.]
    3. Arson (§ 41) — Description op Property —“House.”
    Where there was no question' that the house which was burned was a ginhouse, a definition by the court in its charge that a “house” is any building, edifice, or structure inclosed with walls and covered, whatever be the material used for the building, was sufficient and not misleading, and was in accord with Pen. Code 1895, art. 757.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 77-80; Dec. Dig. § 41
    
    For other definitions, see Words and Phrases, vol. 4, pp. 3351-3357.]
    4. Arson (§ 41) — Instructions—Ownership OR Property.
    Where the property burned was shown to be the property of A., and was so charged in the indictment, and there is no question in the record of his ownership, a charge that accused was alleged to have burned a certain house “as charged in the indictment” is sufficient, though it did not state that the house was the property of A.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 77-80; Dec. Dig. § 41.]
    5. Criminal Law (§ 1090) — Appeal—Bill op Exceptions.
    Where bills of exceptions are not in the record, the court cannot consider anything based thereon.
    [Ed. Note. — For other cases, see Criminal Law, Doc. Dig. § 1090.]
    6. Arson (§ 30) — Ownership or Possession —Parol Evidence.
    While parol evidence is inadmissible to prove title to real estate, in a prosecution for arson it is sufficient to prove possession of the property by parol, since the offense is directed against the possession rather than against the absolute ownership.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. § 61; Dec. Dig. § 30.]
    7. Arson (§ 28) — Evidence—Admissibility.
    In a prosecution for arson, evidence of witness that he pointed out to the sheriff the team driven by defendant to the place where the burning occurred was admissible.
    [Ed. Note. — For other cases, see Arson, Dee. Dig. § 28.],
    8. Criminal Law (§§ 665, 1153) — Witnesses — Discretion op Court.
    Whether the witnesses not placed under the rule will be permitted to testify is in the discretion of the court, and will not be reviewed unless an abuse thereof is shown.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1564, 3065; Dec. Dig. §§ 665, 1153.]
    9. Criminal Law (§ 1090) — Appeal—Matters Reviewable — Exceptions.
    Grounds of motion based on exceptions not in the record cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    T. E. Allen was convicted of arson, and he appeals.
    Affirmed.
    Levi Herring, W. L. Dean, and Owsley & Sullivan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Kep'r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes-.
    
   HARPER, J.

In this case appellant was charged with arson, and upon a trial he was convicted, and sentenced to five years’ confinement in the penitentiary.

1. This is a ease of purely circumstantial evidence, and defendant insists that the circumstances do not link up with that certainty as to authorize a conviction. It appears from the record that defendant was in charge of the gin that was 'burned, and had been managing it. A few days before the gin was burned he had instructed W. L. Tidwell, who was working for him, to take some bagging out of the gin house, saying to the witness it might catch fire, and, if it did do so, he would save that much.

Dr. W. H. Powell testified: That during the day (the gin burning that night) “I met the defendant on the streets of Glen Rose, and he told me that some cotton seed which I had previously bought from him were at. the gin, and that I could get them, and I told him I would send down and get them that evening, and did do so.” The gin was1 located between four and five miles from Glen Rose. J. E. Shipley testified that he-was at the gin in the morning and the evening of the day (the night) it was burned, and the gin was not in operation; that there-was no fire in the furnace, and no steam in the boiler. Defendant is shown to have been in Glen Rose at 3 :30 o’clock.

John J. I-Iiner testified that defendant requested to be permitted to go with him in his auto to Granbury, and that he did so, arriving at Granbury at 5:15; it being the 19th day of September.

Miss Ethel Gresham testified that defendant came to the Commercial Hotel and registered, and was assigned to room No. 8, and was shown to his room.

Mr. Fritz testified that he was cashier of the bank at Glen Rose, and was familiar with the handwriting and signature of defendant, and that the defendant’s name on the hotel register was in the handwriting of defendant

Mr. Jones testified, and identifies defendant as the man who came to his stable in Granbury, and got a team, saying he was going to Glen Rose. 1-Ie describes the team secured by defendant “both horses are same color, both being sorrels, one of them being slightly sprinkled with gray, giving it a little lighter color than the other. The darker colored one is a horse, having one ear cropped off. The other is a mare, slightly smaller and lighter in color, and has a white face, or what is sometimes called a ‘bald face.’ There is a peculiarity about the feet of both of these horses. The horse had one front foot considerably larger than the other front foot, both larger and bigger hoof. Both front feet of the mare had a built-over frog, or a strip of iron extending from one point to the other point of the shoe, welded to the iron of the shoe. Defendant left the stable about 7' o’clock of the evening of the 19th of September with this team, and told me he was going to Glen Rose. This team has often been driven to Glen Rose. A man named Milam has driven this team to Glen Rose frequently. This team at ordinary travel would make six or seven miles an hour, and, if pushed a little, would make 10 miles an hour. The team was back in the stable next morning when 1 got there about 7 o’clock.”

Jim Hiner testified: He worked at Jones’ livery stable. That a man got a team on the evening of the 19th of September, saying he was going to Glen Rose. The team was a sorrel horse and a sorrel mare. The horse had one cropped ear and one front foot larger than the other. The team was brought back somewhere between 2 and 3 o’clock that night, the same night the Rock Creek gin burned. He did not recognize defendant as the man, but said the man who brought the team back told him to get him at the Commercial Hotel for the east-bound train, and said he would be in room No. 8, and witness says he afterwards woke him up for the train. That he was in room No. 8.

Mr. W. W. Lewis testified: “I was at Grandbury, Tex., on Monday, and while there saw the defendant drive across the courthouse square in a buggy and double team, going in the direction that would have carried him to Glen Rose. It was about 7 p. m. The next morning I heard of the burning of the Rock Creek gin.”

Mr. Isenby testified: ‘‘On the night of September 19th I saw one of Jones’ teams come into Glen Rose. I took it to be one of his teams. One was a sorrel horse and the other a sorrel mare. I heard of the circumstance of the burning of the Rock Greek gin, and saw this team the same night. I was living on the Granbury — Glen Rose road. The team was going in the direction of Glen Rose, and was near Glen Rose. I had seen this sorrel team frequently.”

Grover Gibbs testified: “On the night the gin was burned I saw a team in Glen Rose going in the direction of the gin about 9 or 9:30 o’clock. It was a sorrel team, and one of the horses had a bald face.”

Leon Gresham testified he saw the team in Glen Rose the night the gin was burned, about 10 o’clock, recognized it as a Granbury term, and the team Mr. Milam had driven in and out of Glen Rose a number of times. It was a sorrel team, one horse having an ear cropped.

S. A. Baker, night watchman at Glen Rose, testified: “On the night the gin burned I saw the sorrel team, and it was going in the direction of the gin. One of the horses had a white face. I had seen this team driven frequently by Mr. Milam, and had seen Jones, the liveryman at Granbury, driving the team. 'Later, about 11 o’clock, I saw the team returning, and going in the direction of the Gran-bury road. I recognized the team, as the moon was shining.”

Wm. Forsyth testified: “On the night the gin was burned I had been at the home of Mr. Tarver, and was going home. About one mile from the gin I saw a double team in the lane coming from the gin, or by the gin. It was about 11 o’clock. The team looked to be a sorrel team. One of them had a bald face. The team went in the direction of Glen Rose. The buggy was not far down the road' when I saw the light of the fire.”

Joe Woods testified he lived near the gin; that it burned about 10:30 at night; that'he went there the next morning, and saw the sheriff measuring tracks. The tracks were about 15 or 20 feet from the gin. The horse and buggy tracks left going in the direction of Glen Rose.

Sheriff Welsh went to the scene of the fire next morning, and saw where a buggy and team had been driven up to the gate of gin yard. He followed these tracks for about half a mile, where they went into the Glen Rose road. I-Ie measured track of horses. One track was rounder than other; one having a larger hoof. The other horse made a track as though it had large frog in both feet. “I went on to Glen Rose and then to Granbury. At Mr. Jones’ stable in Granbury, I examined the sorrel team shown me by Mr. Jones. One of the team was a mare with a white face, and the other had an ear cropped off. This horse had one foot longer than the other in front, and as I thought fitted the tracks I had seen and examined near the gin. The foot looked like it would make the kind of track.”

This is a brief synopsis ot the testimony. The court gave a full and complete charge on circumstantial evidence, and there was no error in refusing to give the special charge requested on this phase of the case. Neither was there any error in refusing to-give the peremptory instructions requested in special charges Nos. 1 and 2, while special charge No. 4 was given in all essential particulars in, the main charge.

2. In bill of exception No. 1 defendant complains of the action of the court in overruling his motion for a continuance. The court in his qualification shows that all the witnesses were present that defendant desired, and moved to continue on account of their absence, except one, and this one defendant stated he expected to prove by him that he the witness had talked with the witness at about 8 o’clock on the night the gin was burned in Granbury. This might be true, but under all the evidence it would not be' material, as it would not render all the other testimony untrue.

It is not questioned but affirmatively shown by all the testimony that defendant was in Granbury on the evening in question, and the testimony of the absent witness that he saw him there “about 8 o’clock” would not add to nor detract from the other testimony, and it is not material whether it was “about 7 o’clock” or “about 8 o’clock.” Either one would have given him time to have driven to Glen Rose about 10 o’clock, the hour the witnesses say they saw the team in Glen Rose.

3. In Ms charge, the court defined a house to be “any building, edifice, or structure inclosed with walls and covered, whatever Be the material used for the building.” Defendant in his second bill says this is insufficient. There is no question that the house which burned was a ginhouse, and this definition could not be misleading; besides, this definition is in exact accord with article 757 of the Penal Code.

4. The complaint that the charge instructed the jury “that on or about the 19th day of September, 1910, defendant did then and there willfully set fire to and burn a 'certain house as charged in the indictment,” and did not charge that he “burned a house, the property of D. S. Arnold,” is likewise without merit. The property burned is shown to be the property of D. S. Arnold, and was so charged in the indictment, and there is no question in the record of his ownership, and the charge is sufficient, in that it says as charged in the indictment.

5. Bills of exception Nos. 3, 4, 5, and 6 are not in the record. Therefore we cannot consider anything based thereon.

6. In the trial of the ease John Keeton was permitted to testify: “In September, 1910, I resided in Somervell county, Tex., and during the month and theretofore I was the owner of a gin outfit and building. I sold this building and gin property to one D. S. Arnold some time during the month of September, 1910, and executed to him a deed of conveyance for it. Some two or three weeks after I sold the gin property to Arnold, the house was destroyed by fire in the night. I do not remember the date of the fire, and did not see the fire, but was at the premises after the fire had occurred and on the morning after it burned. The gin building was of the ordinary kind, built of lumber, with cedar posts foundation and uprights, with walls of ltimber and roof of iron. The main building consisted of one room with a seed-room attached, all of which was totally burned. This burning occurred in Somervell county, Tex.”

In bill of exception No. 7 defendant saved an exception to this testimony on the ground that the deed was the best evidence, and oral testimony was inadmissible to show that Arnold was the owner of the property, and we are cited to the case of Goldsmith v. State, 46 Tex. Cr. R. 559, 81 S. W. 711, wherein it is said: “We are of the opinion under the peculiar facts of this case, the property being private property and unoccupied, that the deed should have been introduced. So upon another trial, if this question should arise, the introduction of the deed will avoid any complications.” The indictment in this case alleged that defendant “did unlawfully, willfully, and maliciously set fire to and bum a certain house of one D. S. Arnold.” The case cited does not hold, and we do not think that in a ease of arson it is essential that the deed be introduced. [6] As stated in that case, it might be better practice, yet in passing on cases of arson it has frequently been held, and the rule seems to be, that while parol evidence is not admissible to prove the title to real estate, and evidence by deed has been required where the crime is against the property right of the fee owner, generally it is sufficient to prove possession of the property by parol testimony, since the offense is directed against the possession and occupancy rather than against the absolute ownership, and the allegation of ownership is merely to describe and identify the subject of the crime, and the title is not in issue. This has been the holding of this court, so far as we can ascertain by reading the cases, and such is the doctrine announced in State v. Burrows, Houst. Cr. Cas. (Del.) 74; State v. Myers, 9 Wash. 8, 36 Pac. 1051; Knight v. State, 58 Neb. 225, 78 N. W. 508, 76 Am. St. Rep. 78; State v. Elder, 21 Da. Ann. 157; State v. Jaynes, 78 N. C. 508; State v. Daniel, 121 N. C. 574, 28 S. E. 255, and authorities cited by these cases.

7. As qualified by the court, bill of exception No. 8 presents no error. Defendant was positively identified by M. E. Jones as the person who secured a buggy from him to go from Granbury to Glen Rose.

8. Neither was there any error in permitting Jones to testify that he pointed out to the sheriff the team driven by defendant to Glen Rose, nor was there error in permitting the sheriff to testify that he examined the feet of these horses.

9. Whether or not witnesses who are not placed under the rule will be permitted to testify is a matter left to the discretion of the trial court, and this court does not feel called upon to rule upon the matter unless an abuse of this discretion is shown by the bill of exception. The bills in this case do not show that the court did more than exercise his discretion in permitting the witnesses Tidwell and Baker to testify, and show no error.

10. The only other bill complains of the remarks of the district attorney. As qualified by the court, this bill presents no error, especially as the defendant requested no instruction in regard to the matter.

11. Bills of exception Nos. 9, 12, 13, 14, 15, 16, 17, and 19 are not in the record. Therefore we cannot consider the grounds in the motion based on these alleged exceptions.

Einding no error in the record, the judgment is affirmed.  