
    WHITE v. STATE.
    (No. 6920.)
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1923.)
    1. Criminal law <§=>522(3) — Confessions obtained by unlawful assault not voluntary.
    Confessions obtained by unlawful assault upon accused are not admissible under Code Cr. Proc. 1911, art. 810, permitting introduction of confessions of one accused of crime which are voluntary.
    2. Witnesses <§=77 — Allowing 10 year old negro boy to testify held not abuse of discretion.
    That the trial court in an arson prosecution permitted a 10 year old negro boy to testify to declarations of accused, after the witness on his voir dire had first said he did not know what would be done to him if he told a lie, but that he would be punished, and saying on his cross-examination that he was not acquainted with the obligation of an oath and did not know what an oath meant, held not an abuse of discretion.
    3. Criminal law <§='763, 764(17) — Instruction in arson case held erroneous as on weight of evidence.
    In a prosecution of an 18 year old negro boy for arson, an instruction that “in this case the court had introduced evidence tending to prove the theft of a turkey and a chicken on or about the time the house was alleged to have been burned,” and that such testimony could be considered only for the purpose of proving the guilt of accused of the offense charged by circumstances connected with the theft, if any, held erroneous as being on the weight of the evidence.
    4. Criminal law <§=318 — In cases of circumstantial evidence, inferences from evidence in state’s possession, hut not introduced, are in favor of accused.
    In a case of circumstantial evidence, inferences from evidence not introduced which are in the possession of the state are in favor of and not against accused.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Robert White was convicted of arson, and he appeals.
    Reversed and remanded.
    Myron G. Blalock and Y. D. Harrison, both of Marshall, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for arson; punishment fixed at confinement in the penitentiary for a period of five years.

A “goober-house” belonging to Fannie Dunn was burned. The fire occurred at night, and it was not discovered until the following day. Appellant, a negro boy about 18 years of age, had previously been living at the home of Fannie. Dunn; but a short time antecedent to the fire they had some unfriendly talk about the buying of a shirt, and the appellant left the house. According to her testimony, he came back to talk about a settlement between them and wanted to wear the shirt. Fannie Dunn testified that after the house was burned, she saw tracks in the sand between the orchard and the potato patch. The person making the tracks apparently had stepped over the wire fence and came to the hen house, walked down the potato row to the peanut house, and then to the cowpen and into the road. The tracks described by her and other witnesses for the state were sock-feet tracks. There was a hole in the sock, about two inches across, which made an impression in the sand. The tracks went by the “goober-house” and passed the hen house and down the road to a bridge across a creek about a half mile distant. Beyond the bridge, there were no sock-feet tracks, but there were shoe tracks. The shoe tracks were traced to the home of the witness McOoy, where the appellant was found.

The officers who arrested the appellant forced him to put his sock-foot in the tracks found at the Dunn home, and according to the state’s witnesses, the foot fit the tracks. The witnesses were unable to say whether the tracks were fresh or old tracks, except that they did not look very old.

Appellant testified that he was at McCoy’s house at the time of the fire, and his testimony upon this subject was supported by several witnesses.

One witness for the state testified that he had spent the night on which the fire occurred at the home of a neighbor of the witness McCoy. Quoting him, he said:

“I got up about sunup the morning after the peanut house was burned. When I got up, I seen Mr. Felix’s wife and Felix, and Mr. Cap McCoy and his wife, and Bessie Dee ancPRobert White. Robert was at Cap McCoy’s house. I did not talk to Robert. He just spoke to me; he told us, ‘I-Iowdy,’ and asked where I was going. I told him I was going home, and he told me that if I seen anybody, asking for him, ‘don’t tell them you saw me.’ ”

The witness said further that he heard the appellant say to Cap McCoy that, “if I had got the turkey, wouldn’t eat him now, as Miss Fannie had been feeding her chickens nux vomit” (nux vomica) for hawks. The testimony of this witness was controverted by appellant and other persons present at the McCoy home.

There was some evidence that the fire was caused by spontaneous combustion.

After appellant was arrested by officers, he was struck by one of them in the mouth. The officer said:

“I think I hit Mm with my fist once and slapped him once. I struck him in the mouth as hard as I could hit him.”

This officer also testified that the appellant was laid across a log; that his clothes were removed, and that he was whipped by the officers with a switch, which one of them described as being “about the. size of my little finger or a little larger than my little finger. It was as big as my biggest finger and was green. I didn’t count the times I hit Robert.”

In addition to whipping the appellant, the officers told him that, if he did not confess, they would take him to town and put him in the “shocking machine.” They forced him to put his feet in the tracks. The statute, article 810 of the Criminal Code, permits the introduction of the confession of one accused of crime which is “voluntary.” Both the Legislature and the courts have been alert to see that the confession was voluntary. We presume that the efforts of the officers in the instant case revealed by the testimony was directed to securing such a confession. In these efforts, they were unsuccessful, though doubtless proof of them impressed the jury that the officers believed appellant guilty. According to their own testimony, they made an assault which was unlawful and accompanied by no mitigating or justifying circumstances. Confessions obtained under such conditions are violative of the statute and of the rights of the accused. Zeal on the part of the officers should never lead them to use violence to procure a confession which the law demands shall be voluntary. See Williams v. State, 88 Tex. Cr. R. 87, 225 S. W. 177; Bozeman v. State, 85 Tex. Cr. R. 653, 215 S. W. 319; Robertson v. State, 81 Tex. Cr. R. 378, 195 S. W. 602, 6 A. L. R. 853; Finks v. State, 84 Tex. Cr. R. 536, 209 S. W. 154.

The witness who testified to the alleged declarations of the appellant was a 10 year old negro boy, whose qualification as a witness was challenged upon the ground that he had insufficient knowledge of the nature of an oath. On his voir dire, he said first that he did not know what would be done to him if he told a lie, but that he would be punished. On his cross-examination he said that he was not acquainted with the obligation of an oath, and did not know what an oath meant.

The bill presenting this question for review consists, in the main, of questions and answers, and we think is hardly sufficient to require consideration. Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744. Suffice it to say that under the rule prevailing in this state, touching the competency of a child, we express the opinion that in admitting the testimony of the witness, the discretion vested in the trial court was not abused. See Branch’s Ann. Tex. Penal Code, § 1771, and cases listed; also, Ake v. State, 6 Tex. App. 402, 32 Am. Rep. 586; Murphy v. State, 36 Tex. Cr. R. 29, 35 S. W. 174; McCormick v. State, 52 Tex. Cr. R. 494, 108 S. W. 669; Hunger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874.

In instructing the jury, the court used this language:

“In this case the court had introduced evidence tending to prove the theft of a turkey and a chicken on or about the time the house was alleged to have been burned. You are instructed you can only consider, such testimony for the purpose for which it was admitted, that is, to prove the guilt of the accused of the offense charged by the circumstances connected with the theft, if any, and you will consider it for no other purpose.”

This charge was made the subject of an exception because it was on the weight of the evidence. It is'‘couched in language which has heretofore been so characterized. See Leach v. State, 46 Tex. Cr. R. 509, 81 S. W. 733; Reese v. State, 44 Tex. Cr. R. 34, 68 S. W. 283; Hollar v. State (Tex. Cr. App.) 73 S. W. 961; Cortez v. State (Tex. Cr. App.) 74 S. W. 907; Cavaness v. State, 45 Tex. Cr. R. 209, 74 S. W. 908; Gustamente v. State, 81 Tex. Cr. R. 640, 197 S. W. 999; Reese v. State (Tex. Cr. App.) 70 S. W. 424.

The evidence that appellant stole a chicken and a turkey is meager and inconclusive. They were not found in appellant’s possession. Fannie Hunn said that she lost a chicken and a turkey. She did not describe them nor state the kind of feathers they wore. A witness testified that every once in a while he saw some feathers between the house of Fannie Dunn and the bridge, some of which were black and other Plymouth Rock; that he also saw feathers about the chicken house. There was testimony that there were feathers about the premises of McCoy; that feathers were found about the barnyard and upon the road, but in the absence of some definite identification of the feathers with the lost fowls, this evidence, considered alone, is of little weight.

The evidence of appellant’s guilt is not so conclusive as to render harmless the charge mentioned. Circumstances alone were relied upon. The evidence touching the sock-foot tracks about the premises and in the road going as far as the bridge is not altogether inconsistent with the innocence of the accused. He had been an inmate of the home up t.0 one or two days before the fire occurred, and he had walked about the premises. Whether in his sock-feét or otherwise is not disclosed; whether the tracks were fresh or old is-not shown. The sandy character of the ground, according to some of the testimony, rendered it difficult to identify the tracks. Assuming, however, that they were his tracks, there is an absence of evidence of tracks coming to the premises. The person who made those found was going away, and according to the theory of' the state, was going to the home of Cap McCoy, where the appellant was found. He went from the home of Fannie Dunn to that of Cap McCoy only a short time before the fire. The person who made the sock-foot tracks made that character of tracks no further than the bridge, which was a half mile from the home of Fannie Dunn, and as we understand the record, about a quarter of a mile from that of Cap McCoy. There were tracks made by some one who was shod from the bridge to the home of McCoy. Appellant, when arrested, had on a pair of shoes. Upon the subject of a comparison of the shoes that appellant was wearing with the tracks which were made by the person shod and going from the bridge to McCoy’s home, the record is silent. The state’s witnesses were in possession of the shoes and of knowledge of the tracks. Whether the evidence would have been favorable to the appellant or not is left in doubt. In a case of circumstantial evidence, inferences from evidence not introduced which are in the possession of the state are in favor of and not against the accused. See Parish v. State, 85 Tex. Cr. R. 75, 209 S. W. 678. Footprints, when associated with other incriminating circumstances, are often important elements in a case of circumstantial evidence. Finch v. State, 89 Tex. Cr. R. 367, 232 S. W. 528. But when not so associated, they have often been deemed inadequate to identify the accused. See Warren v. State, 52 Tex. Cr. R. 218, 106 S. W. 132; Gill v. State, 36 Tex. Cr. R. 594, 38 S. W. 190.

Taking into account the weakness in the evidence of guilt, the charge of the court to which we have adverted is deemed of a nature calculated to injure the rights of the appellant.

From what has been said, it follows that .in the opinion of, the court the judgment should be reversed, and the cause remanded, and this is ordered. 
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