
    ARENSMAN v. STATE.
    (No. 4084.)
    (Court of Criminal Appeals of Texas.
    May 24, 1916.
    Rehearing Denied June 21, 1916.)
    1. Ceiminal Law <&wkey;829(l) — Trial — Instruction — Repetition. . .
    . The refusal of special charges, covering matters properly submitted, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829(l).]
    2. Criminal Law i&wkey;llll(3) — Appeal — Acceptance of Qualified Bills of Exceptions.
    Where appellant accepted allowance of his bills of exceptions as qualified and explained by the trial judge, he is bound thereby.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2894.; Dec. Dig. <@=1111(3).]
    3. Criminal Law &wkey;422(5) — Evidence — Statements of Conspirators.
    In a prosecution for arson, where the testimony was sufficient to authorize the jury to find that there was a conspiracy between defendant and his wife to burn a building and the wife’s millinery stock therein, and collect the excessive insurance, testimony of a witness, that while he was sick defendant’s wife told him in the absence of her husband that if times got dull she would burn and get the insurance before she would go broke, was admissible if the jury found the existence of a conspiracy.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 984; Dec. Dig. <@=422(5).]
    4. Witnesses <&wkey;52(7) — Disqualification —Husband and Wife.
    The statute prohibiting the state from making a wife testify against her husband had no application to the case.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 132-134; Dec. Dig. &wkey;52(7)J
    5. Criminal Law <&wkey;1028 — Appeal—Reservation of Ground of Review — Objection to Evidence.
    In a prosecution for arson, where defendant merely objected to testimony as to the contents of a letter and postal from his wife to a witness, but assigned no ground, so that the court made no ruling and defendant did not except to the admission of the evidence or any ruling of the court or the failure of the court to make a ruling, there was no error; proper predicate having been laid for the secondary evidence by showing that the papers were without the jurisdiction.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. <@= 1028.]
    6. Criminal Law <&wkey;520(l) — Evidence—Confession.
    Where defendant made written confession to the city marshal under promise of suspended sentence, which could not be given, so that the written confession was inadmissible, testimony of a witness embodying a confession or admission of defendant made later, after defendant was out on bond and had retained and consulted his attorneys, was admissible in the absence of anything indicating that the statements to the witness were not wholly voluntary.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1175, 1181, 1184; Dee. Dig. &wkey;520(l).]-
    7. Criminal Law <&wkey;406(l) — Evidence—Admission.
    In a prosecution for arson, testimony of the city marshal that defendant, after the fire, admitted that he lied when he denied he was in the building immediately preceding the fire, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 785, 894, 895; Dec. Dig. <&wkey;>406(l).]
    8. Criminal Law <&wkey;721]4(2) — Trial—Argument of County Attorney — Failure to Call Witness.
    Where there was a conspiracy charged between defendant and his wife to burn property for the insurance, the county attorney had a right to make an argument based upon the fact that defendant failed to introduce his wife as a witness for him.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. <&wkey;> 721%(2).]
    9. Criminal Law &wkey;>1159(3) — Appeal—Review — Misconduct of Jury — Question for Trial Court.
    Where defendant attacked the verdict on account of misconduct of the jury in discussing his failure to testify, testimony tending to support defendant’s contention, opposed to testimony tending to disprove it, raised a question of fact for the trial judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <@= 1159(3).]
    10. Criminal Law <&wkey;841 — Trial—Charge-Objections.
    Objections to the charge must be made before reading to the jury, and specifically point out claimed errors or admissions therein; it being too late to do so after trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2022; Dec. Dig. &wkey;>841.]
    11. Arson <&wkey;41 — Triai>-Instruotion.
    In a prosecution for arson, where the uncon-tradicted evidence showed that defendant was on the ground if he actually committed the offense, and no intimation was made that any other party outside of himself or wife committed it, the inclusion of the words in the latter part of a charge on principals, “whether in point of fact all were actually bodily present or not,” was not erroneous.
    [Ed. Note. — For other cases, see Arson, Dec. Dig. <&wkey;41.]
    12. Arson <&wkey;41 — Trial—Instruction.
    In a prosecution for arson, where the court told the jury under what circumstances they could consider defendant’s wife’s statements in his absence tending to show by them a common design, purpose, or intent to burn “said stock of millinery,” he should have said “said building.”
    [Ed. Note. — For other cases, see Arson, Dec. Dig. <@=41.] ■
    13. Criminal Law <&wkey;809 — Trial—Instruction.
    In a prosecution for arson by burning a building for the insurance, the charge that the jury could consider defendant’s wife’s statements in his absence tending to show a common design, purpose or intent to burn “said stock of millinery,” when he should have said “said building,” was not misleading, where the court charged, when the testimony was admitted, that the jury could only thus consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1961-1967; Dec. Dig. <&wkey;> 809.]
    14. Indictment and Information <&wkey;174 — Principals — Acts of Accused.
    A principal offender may be charged directly in the indictment with the commission of the offense, though it may not have actually been committed by him, and it is never necessary to the validity of an indictment, or- the introduction of evidence establishing that the accused is a principal, that the indictment shall allege the acts which make him a principal.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 540-543; Dec. Dig. &wkey;174.]
    15. Criminal Daw i&wkey;>822(l) — Trial — Instruction — Construction as Whole.
    The whole of the charge must he considered where objections are made to excerpts or short paragraphs thereof.
    [Ed. Note. — For other cases, see Criminal Daw. Cent. Dig. §§ 1990, 1994, 3158; Dec. Dig. &wkey;822(l).]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    D. D. Arensman was convicted of arson, and lie appeals.
    Affirmed.
    Ratliff & Spencer and Frank J. Ford, all of Decatur, and Arnold & Taylor, of Henrietta, for appellant. M. W. Burch, Co. Atty., of Decatur, and C. C. McDonald, Asst Atty. Gen., for the State.
   FRENDERGAST, P. J.

Appellant was convicted of arson and assessed the lowest punishment.

The state’s theory and contention was, which was denied by appellant, that he himself, or with his wife, as a principal, committed the offense, and before the offense was committed they had agreed and conspired to commit it. The evidence was largely circumstantial. Some testimony was introduced which tended to show, if it did not positively do so, that appellant made admissions sufficient to show his guilt. There was no conflict in the testimony on any material point. Neither appellant nor his wife testified, and he introduced no testimony other than two witnesses who testified to his good .reputation in another county where he lived some year and a half or two years before he was charged with this offense.

The state proved, and the jury were clearly authorized to find and believe, that in August, 1914, appellant’s wife and another lady bought out a millinery stock and fixtures in Decatur, paying therefor $50 cash and executing three notes for $50 each, for the balance. This partnership was dissolved in January following, Mrs. Arensman taking all the stock and fixtures and assuming all indebtedness. She then took out a policy for $300 insurance on the stock. She later made purchases on credit and also made sales on credit. She was unable to collect for sales she had made on credit. Appellant signed some of the notes with her, which she gave for the purchase of some of the stock.

About, or shortly prior to, January 1, 1915, Mrs. Arensman rented from Mrs. Beard the second story of a storehouse in the center of a solid block of storehouses, north of the square in Decatur, which fronted south, the courthouse being in the center of the square. This second story was cut up into four rooms. She conducted her millinery business in the two front rooms and rented the rear two to Mr. Inman, who occupied these two rooms with his. family until the latter part of May, when they removed to Oklahoma. Inman’s stepfather and mother part of the time occupied these two rooms with his family. When he removed his family, he and his stepfather both left part of their household goods stored in these two rooms. There was an entrance to this second story by stairs from both the front and rear, the rear on an alley. The fastening of the back door from the rear, stair was by an inside bar across the door underneath the doorknob or latch. Inman first went to Oklahoma, where he got work, the last of February, leaving his family in said rooms in Decatur. He got sick the last of March and returned to his rooms with his family, where ho was sick in bed for two weeks. This would put him there sick from the last of March to about the middle of April. While Inman was there sick, Mrs. Arensman was in to see him. They got to discussing the frequent fires in Decatur, and in the Conversation Mrs. Arensman told him she could not collect money for what she had sold and had some notes coming due which she was going to have to pay; that if times got dull she would burn up and get the insurance before she would “go broke.” Just at this time appellant himself applied to the insurance agents for a policy of insurance in addition to the $300 policy his wife then had on the millinery business, and procured the issuance of a- policy for an additional $200, which was issued to her on the millinery stock. The two policies at that time and continuously until the fire aggregated $500, one, $300, and said additional one, $200. Shortly prior to the fire, Mrs. Arensman tried to sell her business to other milliners, who inspected her stock at the time with the view of purchasing. She then asked $300 therefor. The prospective purchasers would not have been willing to have given her more than $150 or $175 therefor.

There can be no question but that said millinery stock and the store in which it was located were purposely set on fire and willfully burned on the night of June 7, 1915, some time between 9 and 11 o’clock, most of the testimony showing that it was near 11 o'clock. The appellant, his wife, and family lived together in a residence in the south part of Decatur. On the day preceding the fire that night, appellant several times passed up and down before an adjoining store to said building which was burned that night. Appellant and his wife, just after dark on the night of the fire, which must have been near 9 o’clock, were seen to come down the back stairway into the alley from said second story where said millinery business was conducted, which was much later than they ordinarily left said millinery store. Again that night, about 25 or 30 minutes before the fire, they were seen together to come out of said alley back of said store building, cross tbe street running north from the northwest corner of the square, and start as if they were going north. Instead of doing so, they immediately turned and went south on the sidewalk on the west of said street until they, got near the corner, then crossed that street diagonally, got on the sidewalk in the front of the block of buildings north of the courthouse, and continued directly to the front stair where said millinery stock was. They disappeared up this stair, but were not seen when they came out. The next time they were seen was from one to three minutes before the fire was discovered, when they were met on the sidewalk on the west side of the square, about the middle of the block, going south towards their residence. Two parties there met them. These two parties went north on this same sidewalk to near the northwest corner of the square, cut across the square to the sidewalk on the north, in front of said building and millinery business. Just as they passed the millinery store, they heard some noise which attracted their attention and remarks. They, however, proceeded east to near the corner of the square, when they again started diagonally across the street to the store on the northeast corner, when they stopped, and, upon looking back, discovered that said millinery store was on fire. They immediately ran back to this building, upstairs, and broke in one of the doors of said millinery store, when they discovered that a whole lot of paper and millinery goods were heaped in a pile against, or near, the partition wall between the two millinery rooms, and on fire. The smoke was then dense and the heat considerable. They fled and gave the alarm of fire, when a large crowd at once gathered, the fire company appeared, and succeeded in later extinguishing the fire before it consumed the entire building, though it consumed the roof, partition wall, considerable of the floor of the second story, and most, if not all, of the millinery stock.

The next day, the city marshal, C. C. Lewis, and appellant were in said second story of said building. The city marshal asked him if he had any enemies, or something like that, that would burn him out. He said he didn’t know that he had a single one. The city marshal then asked him if he was not in the building the night before, immediately preceding the fire. He at first said he was not. The city marshal said to him: “We are both Odd B'ellows. Don’t lie to me. I know you was in this building.” Appellant replied: “I will admit that I did lie. I was in this building” — that he had come up to get something, a paper or record.

Mr. Beard, the husband of Ella Beard who owned said store building, the next day after the fire, went from Ft, Worth to Decatur to see about it. That evening he met appellant and asked him if he had any insurance. Appellant replied:

“They tell me they are going to have an investigation, and if they are going to do that, rather than bother about the insurance, I will let the whole thing go.”

A few days after the fire and after appellant had been arrested and gave bond, he talked with Mr. Dixon and said to him that his attorneys had told him if the Odd Fellows would keep quiet, he could beat this— the witness didn’t remember whether he said “case” or what it was. The witness told him the Odd Fellows could not help him. He then said if they — called three names, Mr. Wasson, Mr. Birchfield, and Mr. Ben Watkins, and, while he did not call the witness’ name, yet linked him with these three other parties — would not tell what- they knew, or would keep quiet, it would be all right. The witness said to him that he had never confessed to him anything about burning the building, and he didn’t want him to. Appellant said he was not afraid of Wasson, but did not know about Birchfield and Watkins, and asked the witness to see them and speak to them about it and ask them not to tell. When the alarm of fire was given and parties gathered at the building to put out the fire, it was found that the said back door at the head of the back stair in the alloy was unfastened.

Appellant requested a large number of special charges which were refused. It is unnecessary to discuss them separately. We have examined them all. None of them should have been given. Wherever they cover any matter which was proper to submit, the court in his main charge properly submitted the question. I-Ie has several bills to the admission of certain testimony. Some of them embrace substantially the same character of testimony. It will not be necessary to take each up separately. What we will say as to one covers the others along the same line. Every one of his bills were qualified and explained by the judge when he allowed them. Some, he, in effect, refused to allow. Appellant accepted them with this action of the court and is bound thereby, as all the authorities so hold.

In his first bill, he objected to that part of Mr. Inman’s testimony, wherein he testified what Mrs. Arensman said to him while ’ he was sick, which is substantially above given. The bill, as allowed and approved by the court, shows that he objected to that testimony only on the grounds that it was hearsay, not in his presence; that there was no evidence of a conspiracy existing at the time; it was no part of the res gestee ; was highly inflammatory and prejudicial to his rights, and was requiring his wife to testify against him. The court further stated, in effect, that he admitted this testimony because he thought it tended to throw light upon and explain the subsequent conduct of appellant and his wife, the other evidence tending to show they formed a conspiracy to burn the building in question and were acting together in such design. That at the time he admitted it, he expressly then verbally instructed the jury that it was admitted and to be considered by them and given whatever weight they thought it entitled to receive, and not consider it for any other purpose, unless they believed from all the evidence that there was a conspiracy or agreement between appellant and his wife to burn said building, and that he would further give them a written charge when he charged them, and that he later gave such written charge, properly limiting this testimony. In our opinion, under all the authorities, this testimony was admissible. The testimony was amply sufficient to authorize the jury to believe and find that there was a conspiracy, or agreement, between appellant and his wife to burn said building and millinery stock, so that they could collect the said excessive insurance.

Mr. Branch in his annotation of our Penal Code, under article 78, on principals (page 352 et seep), has collated many cases from this court and laid down propositions thereby established applicable to the questions herein. We will state and quote liberally from him. He says (page 353) :

“If either the husband or wife * * * is on trial for the completed offense, proof of the acts or declarations of either, though made in the absence of the other, is admissible against the other, if done or made pending the conspiracy and in furtherance of the common design. Smith v. State, 46 Tex. Cr. R. 275, 81 S. W. 936, 108 Am. St. Rep. 991; Smith v. State, 48 Tex. Cr. R. 240, 89 S. W. 817.”

That such agreement, or conspiracy, is contemplated and provided for by our statutes themselves is fully shown by Judge Henderson, in the opinion of the court in said latter ease just cited.

Again, Mr. Branch says (page 352):

“When a conspiracy is shown, proof of the acts and declarations of coconspirators is admissible to show the common design, purpose, and intent of all the conspirators, whether such acts and declarations were made before or after the formation of the conspiracy, or whether the same were made before or after the defendant on trial entered into the conspiracy”

—citing a large number of the decisions of this court, unnecessary to copy here, specifically holding what he announces as the rule.

L4] Again, he says (page 353):

“Proof of what was said and done by any of the conspirators, pending the conspiracy and in furtherance of the common design, is admissible against the one on trial, though said or done in his absence.”

He cites a still larger number of the decisions of this court exactly in point and clearly establishing the rule stated by him. The statute prohibiting the state from making the wife testify against the husband has no application to this question or in this case.

Appellant prepared a bill, wherein he claimed he made some objections to the court’s admitting Inman’s testimony to the contents of a letter and postal from Mrs. Arensman to him, notifying and requiring him to remove his and his stepfather’s goods stored, as stated above. The court, in effect, refused the bill, stating that, when said witness was testifying, appellant merely objected but assigned no ground therefor, and for that reason he made no ruling, and appellant did not except to the admission of the evidence or any ruling of the court or the failure of the court to make a ruling. However, he further states that, if the proper objection had been made, he would have admitted the testimony, because the proper predicate had been laid for the secondary evidence, and that the letter and postal, if not lost, were in Oklahoma, outside of the jurisdiction of this court. As thus explained, this bill, if not refused outright, shows no error.

As explained and allowed by the court, his fourth bill, to the exclusion of a letter from Mrs. Inman to Mrs. Arensman, shows no error.

Appellant’s fifth bill shows he objected to the testimony of said Dixon. The court, in explaining and qualifying the bill, states:

“The only objection made to said testimony was that it embodied no confession or admission of the defendant, and that theretofore defendant Arensman had made a written confession to the city marshal, Claude Lewis, and that said written confession had been excluded by the court because it was obtained by promising the defendant a suspended sentence; that there is no evidence that that promise made by an officer was ever removed from the defendant’s mind; and that there is no evidence to show that he was not laboring under the same impression, even when he talked with his lawyers.
“The defendant had, two or three days before his arrest on this charge, made a written confession of his guilt in this case in the presence of Claude Lewis, city marshal, and the county attorney. This confession was excluded -by the court, because, under the evidence submitted to the court in the absence of the jury, the court thought the same was induced to be made by the promise of a suspended sentence, said promise being made by the city marshal in good faith, however, he not knowing at the time that the suspended sentence law did not apply to convictions for arson. But the foregoing statements of the defendant were made some time after his arrest and after he was out on bond and had retained and consulted with attorneys; besides, there is nothing in the testimony or in any other evidence 'to indicate that the statements of (to) the witness Dixon were not wholly voluntary.”

Said Dixon’s testimony was admissible. So was the testimony of the city marshall, Lewis, as to what appellant admitted to him, shown above.

Appellant has two bills to the argument of the county attorney. As explained and qualified by the court, neither shows any error. The county attorney clearly had the right, under all the authorities, to make an argument based upon the fact that the appellant had failed to introduce his wife as a witness for him. That she was implicated as a principal would not prevent such argument.

In his motion for a new trial, appel•lant attacked title verdict, on account of claimed misconduct of the jury in discussing Ms failure to testify. The court beard all the jurors testify on the subject. Their evidence is properly preserved in appellant’s ninth bill. We have fully considered this ■bill and the evidence of the jurors. Excerpts from the testimony of several of them can ’be culled, which would tend to support appellant’s contention. lake excerpts can be •culled from the testimony of these same jurors which would tend to disprove his contention. • The testimony of many of the other jurors would also tend to disprove his contention. This, of course, raises a question of fact, which must be decided by the trial judge. He sees and hears the jurors, and is better able to determine the truth of the matter than this court can possibly be from reading a statement of their testimony. We fully discussed this character of question in the opinion on rehearing in Lamb v. State, 169 S. W. 1160, and in other cases, both before and since then. In our opinion, the district judge was clearly authorized to find as he did and deny a new trial, and under the •circumstances and law we would not be justified in reversing this case on that point.

Appellant made several objections to the court’s charge. We have carefully considered them all. Our statute now, which has been uniformly followed by tMs court in many decisions, requires that the objections to the court’s charge shall be made before it is read to the jury, and that such objections shall specifically point out claimed errors or omissions therein, and that it is too late to do so after the trial. In some instances, appellant now, after the trial, points out specifically what he claims are errors in the court’s charge; but his objections which the trial judge passed upon did not point out and direct his attention then to these matters. Doubtless if they had, he would have changed his charge to meet the objections. Thus in his charge on principals, he quoted what is denominated a favorite charge on principals, quoted by Mr. Branch in section 685 of his Ann. P. C. Complaint is now made, but was not then made, that the court in the latter part included these words: “Whether in point of fact all were actually, bodily present or not,” etc. Doubtless if the court’s attention had been called thereto by appellant’s objections at the time, he would have omitted this language. However, in this ease, it would present no error, because the uncontradicted evidence would show that appellant was-on the ground if he actually committed the offense, and no intimation is made from the testimony that any other party, outside of him or his wife, committed the offense. He in no way set up alibi, and the evidence in no way tended to show that he was a mere accomplice. So, in another place, where the court told the jury under what circumstances they could consider his wife’s statements, etc., in his absence, which tended to show by them a common design, purpose, or intent to burn “said stock of millinery” when he should have there said “said building.” This could in no way have misled the jury, for when the testimony was admitted, the judge specifically, orally charged them that they could thus consider it, only if it was shown that it was the common design, purpose, and intent of both appellant and his wife to burn “said building.” There can be no doubt that if the judge’s attention had been called at the time to the fact that he had used said words, “stock of millinery,” instead of “building,” he would at once have corrected this. Besides, the uncontradicted evidence showed that fire was set to the millinery, which necessarily burned the building.

It has always been held that a principal offender may be charged directly in the indictment with the commission of the offense, although it may not have been actually committed by him, and that it is never necessary to the validity of an indictment, or to the introduction of evidence establishing that an accused is a principal, that the indictment shall allege the acts which make him a principal. Section 676, Branch’s Ann. P. 0., and cases there cited.

It is elementary that the whole of the charge must be considered when objections are made to excerpts or short paragraphs thereof. Appellant excepted to some of the paragraphs of the court’s charge, claiming that they were on the weight of the evidence. We think none of these objections are sustained by the record. We think the charge nowhere expresses any opinion as to the weight of the evidence or assumes that any given fact may be true; but, on the contrary, every issue of fact necessary to be submitted was left entirely to the jury for the jury alone to decide; and every fact essential to appellant’s conviction by the charge was required to be believed by the jury beyond a reasonable doubt before they were authorized to convict.

We think the charge an admirable one, and fairly and fully presented everything that was necessary or proper in the case. We see no necessity of quoting the charge, or any part of it, or of taking up separately appellant’s objections thereto.

The judgment will be affirmed.

HARPER, J., not present at consultation. 
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