
    TINKER v. STATE.
    (No. 3676.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 3, 1915.)
    1. Indictment and Information <@=>110 — Requisites — Sufficiency.
    An indictment alleging, in substance, that the defendant, “on or about the 18th day of October, one thousand nine hundred and thirteen, and anterior to the presentment of this indictment, in the county of Scurry and state of Texas, did then and there unlawfully and willfully set fire to and burn the house of Oz Smith, there situate,” follows Pen. Code 1911, art. 1200 et seq. defining the offense of arson, and is sufficient in law, sufficiently describes the burned house, and gives specific notice of the offense charged.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. <@o=110.]
    2. Criminal Law <@=>1091 — Appeal—Matters Reviewable — Exceptions.
    Under White’s Ann. Code Cr. Proc. § 857, requiring bills of exceptions to be full and explicit, and section 1123, providing that no resort to inference to discover their meaning can be had, a bill of exceptions showing merely the substance of the evidence objected to and failing to show when the objection was made or what the other evidence was is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <@=>1091.]
    3. Arson <@=30 — Trial — Identification of Property — Sufficiency.
    The title of burned property is never in issue in arson and may be shown by oral evidence; absolute proof by deed not being essential.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. § 61; Dec. Dig. <@=>30.]
    4. Criminal Law <@=>1169 — Appeal—Matters Reviewable — Harmless Error.
    Although it is error to admit oral evidence that a certain person insured burned property, and at the same time exclude the policy of insurance in showing ownership, the error is harmless, and is not a cause for reversal, especially where other evidence showed ownership.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=>1169.]
    5. Criminal Law <@=>676 — Trial — Cumulative Evidence.
    Where a given fact is sufficiently shown by a number of witnesses, it is not error to exclude testimony of another witness which is merely cumulative.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1608; Dec. Dig. <@=>676.]
    
      6. Arson <§=>25 — Evidence—Admissibility.
    It is not error in a prosecution for arson to exclude copies of deeds tending to show title of the burned property in another than the person •named in the indictment, where it is not claimed that possession or claim of possession by another can be shown; possession being a criterion as to certainty of description.
    [Ed. Note. — Eor other cases, see Arson, Cent. Dig. §§ 52-54; Dec. Dig. <§=>25.]
    7. Indictment -and Information <@=>133 — Sufficiency.
    An indictment cannot be shown to be defective by evidence, but is tested as a pleading under the law applicable.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 454-468; Dec. Dig. <§=>133.]
    8. Criminal Law <§=>1091 — Appeal and Error — Bill of Exceptions — Conclusions.
    A bill of exceptions to the conduct of a prosecuting attorney which states only appellant’s conclusions, and not facts, does not show reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <§=>1091.]
    9. Criminal Law <§=>1159 — Appeal and Error-Matters Reviewable.
    Where there is a conflict in the evidence, but the evidence will sustain the verdict as rendered, the court on appeal will not set the verdict aside.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <§=> 1159.]
    Appeal from District Court, Scurry County ; John B. Thomas, Judge.
    A. E. Tinker was convicted of arson, and he appeals.
    Affirmed.
    Smith & Spiller, of Snyder, for appellant.. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

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

With the necessary beginning and ending allegations, the indictment averred:

“That A. E. Tinker, on or about the 18th day of October, one thousand nine hundred and thirteen, and anterior to the presentment of this indictment, in the county of Scurry and state of Texas, did then and there unlawfully and willfully set fire to and burn the house of Oz Smith, there situated.”

It follows the statute (P. C. art. 1200 et seq.) prescribing the offense and the approved form (Willson’s Forms [4th Ed.] p. 278), and is clearly sufficient against all of appellant’s objections to the effect: (1) The indictment was insufficient in law; (2) it did not sufficiently describe the burned house; (3)it did not give him specific notice of the crime charged; and (4) that the description of the burned property is vague and uncertain.

He has some bills of exceptions to the admission and exclusion of evidence. His first, on this subject merely states that on the trial “the state introduced the following testimony, to wit: That a gin was burned in the town of Snyder, Scurry county, Tex., on or about the 18th day of October, 1913, and that the said gin belonged to Oz Smith,” and that he objected for the same reason he gave in his motion to quash the indictment. What witness so testified, or what other evidence was introduced, is not stated. Unquestionably under the rules (section 857, p. 557, and section 1123, p. 732, White’s Ann. C. C. P.; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Ortiz v. State, 151 S. W. 1058; Best v. State, 164 S. W. 997; Arnold v. State, 168 S. W. 125) this bill cannot properly be considered. However, there is no doubt that such evidence was admissible. It has always been held in this state that the title to the burned property in this offense is never in issue, and that it is not essential that any deed to the alleged owner be introduced in evidence, but that oral evidence of the possession and ownership is always admissible. Allen v. State, 62 Tex. Cr. R. 506, 137 S. W. 1133, and eases there cited. See, also, section 1335, White’s Ann. P. C. 1901, p. 522.

Mr. McConnell, a local insurance agent, testified, in effect, that Oz Smith, the alleged owner of the burned gin, insured it. Appellant objected to this evidence because said Smith had other houses, and the indictment did not aver the burned house was a gin, and the insurance policy was the best evidence. The court did not permit any evidence of the contents of the policy. This evidence was admissible just like any other fact would be which showed said Smith' owned, claimed, or was in possession of the gin. Besides, said 'Smith himself, without any objection by appellant, testified fully the same thing. This court, in Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, said:

“It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to” — citing many cases.

See, also, Bailey v. State, 69 Tex. Cr. R. 484, 150 S. W. 915, and Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541. Again, the uncontroverted testimony of a large number of witnesses, including that of appellant himself, established that said Smith’s said gin was burned on the night of October 18, 1913. Every witness identified the burned gin as that of said Smith. Appellant cites us to some arson cases where it seems to have been held that it was necessary to introduce the insurance policy to show that the burned house was insured, but those cases are not in point, for they were where the owner was indicted for burning his own insured house.

Appellant also objected because he claims the court would not permit him to introduce testimony that a certain brand of whisky came from Lit Chapman, an important state witness, and that he only handled that brand. The court refers to the statement of facts, which shows that a great deal of testimony was introduced by various witnesses to that effect.

Appellant has another bill complaining that the court erred in refusing to permit him to introduce in evidence copies of three deeds from Leroy Johnson, all conveying the said gin property to three distinct persons, “one conveying the property before it was conveyed to Oz Smith, another conveying the property to Oz Smith, and another a sheriff’s deed conveying the property as that of Leroy Johnson to Continental Gin Company, after the date of the deed to Smith,” claiming, “These deeds show that the property was evidently in controversy.” The court qualified the bill as follows:

“The defendant offered some deeds which were refused by the court, as the court could not inquire into exact title to the property; the state having proved by a deed that Smith claimed the property and was claiming the property at the time it burned.”

This is the full bill, without quoting it. The bill in no way pretends to claim that he would or could introduce any evidence whatever to show, or tend to show, that any person whomsoever, other than said Smith, set up any claim whatever to said property, or was in possession thereof, or claimed possession of it, or that any other, except said Smith, owned it. But the testimony, and all of it, without any contradiction whatever, overwhelmingly established that said Smith alone owned said gin, and had for a number of years. He alone had run it in previous years during the ginning season, and repaired it to run for 1914, but had run it partly ginning one bale during that season before it was burned. We think this bill shows no error. Even if said copies of deeds, as claimed by appellant, could have been held to show that “the property was in controversy,” that would not have made them admissible, without showing that some one other than said Smith was in possession, or at least claimed possession, and there is not even such pretense by the bill or otherwise in this record. The title to the property is not, and was not, an issue. Allen v. State, supra.

The indictment could not be shown to be defective by evidence that said Smith owned other houses than said gin, and at some other time he had had houses burned.

“The indictment * * * must be tested by itself under the law, as a pleading. It can neither be supported nor defeated as such by what evidence is introduced on the trial.” Ritter v. State, 176 S. W. 730.

By other bills appellant complains of the manners and attitude of the district attorney in cross-examining a witness. These are very general, and, as stated by the court, are appellant’s mere conclusions, and not approved in the bill as facts. They point out no reversible error.

No other questions are raised requiring discussion. We have carefully studied the statement of facts. There was conflict in the evidence. But the testimony of the state, if believed by the jury, as it evidently was, was amply sufficient to sustain the verdict. That it may have authorized his acquittal, if the jury had believed him and his witnesses, would not authorize or justify this court to set the verdict aside.

The judgment is affirmed. 
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