
    ENIX v. STATE.
    (No. 11024.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    1. Courts &wkey;s64(2) — Special term of district court for trial of criminal cases Is authorized.
    Judge of district court has power to call special term of that court for trial of criminal cases.
    2. Criminal law <&wkey;l 169(10) — Admitting oral, testimony that school district was corporation and that it had voted bonds, if error, as not best evidence of incorporation, held harmless, where order establishing district was later introduced.
    In prosecution for burning a schoolhouse, admission of parol evidence that school district was corporation and that it voted bonds and' had voted bonds, if error as not best evidence of incorporation of district, held not prejudicial, where order of commissioners’ court, redefining ■ and establishing district, was introduced in evidence.
    3. Criminal law <&wkey;ll44(>/2) — Trial court’s ruling will be presumed correct unless bill of exception shows otherwise.
    Court of Criminal Appeals will presume that ruling of trial court was correct, unless-bill of exception shows otherwise.
    4. Criminal law <&wkey;l 120(8) — Complaint of admission of testimony held not shown to be-error, where bill of exception did not show testimony was not res gestae.
    Complaint of admission of testimony respecting action of defendant and accomplice and the statement of defendant held, not shown to be error, where Court of Criminal Appeals could. not determine from bill of exception whether matters testified to were part of res gestae.
    5. Criminal law <&wkey;109l(2) — Bill of exception must itself manifest error.
    Bill of exception must be so full and certain in its statements that in and. of itself it discloses all that is necessary to m'anifest the supposed error.
    6. Criminal law <&wkey;364(2) — Statement of defendant charged with arson that he was going to burn schoplhouse held admissible as res gestae, where made not more than five minutes before fire.
    Testimony of statement of defendant charged with arson that he was going to burn schoolhouse to hide another fire held admissible as res gestae, where it was made not more than five minutes before fire and while defendant and accomplice were approaching schoolhouse.
    7. Criminal law <&wkey;369(l) — Proof of extraneous crimes is ordinarily inadmissible.
    Evidence to prove extraneous crimes should be excluded unless it comes within one of the recognized exceptions.
    8. Criminal law &wkey;>369( 11)— Statement of defendant charged with arson that he had received money for burning houses held inadmissible as showing other crimes.
    Testimony of accomplice in arson that defendant stated to him before the fire that he had a certain sum of money which he had received for burning houses held not material or pertinent to any issue and inadmissible as showing merely that defendant was criminal generally.
    9. Criminal law <&wkey;l 169(1!) — Error in admitting testimony tending to show that defendant was criminal generally held prejudicial.
    Error in admission of testimony that defendant in arson case stated that he received a certain sum for burning houses, which testimony went merely to show that he was a criminal generally, held prejudicial.
    10. Criminal law <&wkey;720(6)— State’s attorney may discuss accomplice’s testimony and draw reasonable deductions therefrom.
    Bill of exceptions complaining that county attorney’s argument was supported only by testimony of accomplice held to manifest no error, since state’s attorney may discuss accomplice’s testimony • and draw reasonable deductions therefrom.
    11. Criminal law &wkey;721 (6) — Argument asking where was the testimony that defendant-charged with arson was anywhere than at scene of fire held not to refer to defendant’s failure to testify.
    Argument of county attorney in arson case, asking where was the testimony that defendant, at time of setting fire to schoolhouse, was anywhere other than at schoolhouse, 'held not error as making direct or indirect reference to defendant’s failure to testify, where witnesses for defendant testified to alibi.
    Commissioners’ Decision.
    Appeal from District Court, Hopkins County; Grover Sellers, Judge.
    W. A. (Pete) Enix was convicted of arson, and lie appeals.
    Keversed and remanded.
    Dial & Brim, of Sulphur Springs, for appellant.
    Emmet Thornton, Co. Atty., of Sulphur Springs, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is arson; the punishment, confinement in the penitentiary for five years.

The state’s testimony shows that the schoolhouse of Paint Rock school district No. 75 was destroyed by fire on the 26th of November, 1926; that, on the night of the fire, appellant, Clarence Davidson, and others went hunting; that they drove home in an automobile, appellant and Davidson riding in the rear seat; that there were some cotton sacks in the back of the car, which belonged to Roy Harry, who was driving the car; that there was a ring on the corner of one of the sacks with a piece of wire twisted around it; that appellant threw a cotton sack out of the car; that appellant and Davidson got out of the car, and appellant went back and got the cotton sack; that Davidson and appellant went to the schoolhouse; that appellant poured oil on the sack from' a lantern the parties were carrying; that while Davidson kept watch appellant placed the cotton sack in the north part of the building, set fire to it, and closed the door; that appellant and Davidson went from the schoolhouse to appellant’s home, and that Davdison went from there to his home; that after, the building was burned a ring with a piece of wire twisted around it was found in the ashes; that after the fire the witness Roy Harry missed the cotton sack with the ring and wire on it; that after the fire appellant advised Harry that he would get him another sack, and requested the witness, if questioned about the sack, to show that he had not lost it; that the witness refused to comply with appellant’s request; that later appellant requested Harry to go to his (appellant’s) father and tell him that he had not lost a cotton sack; that the witness Harry had exhibited to him the ring found in the ashes, and stated that the ring was the same size as the ring attached to the sack he had lost; that the tracks of two men were found along the course described by Davidson as having been followed by appellant and himself.

Appellant did not testify. His witnesses testified that he was at a place other than the schoolhouse on the occasion of the fire.

Appellant was tried at a'special term of the district court by a jury selected by a jury commission appointed at said special term. Finding that no jury commission had been appointed by his predecessor to select juries for the regular January term of court, the trial judge adjourned the regular term before the expiration thereof by operation of law and immediately convened a special term of court. Appellant made a motion to quash the jury panel on the ground that the Code of Criminal Procedure of 1925 contains no provision authorizing the convening of special terms of the district court, and that such special term was illegal. He now brings forward bill of exception No. 1, wherein he complains of the action qf the trial court in overruling his motion. Appellant’s contention has been passed on adversely by this court in the case of Minor v. State, No. 10931, 299 S. W. 422, in an opinion rendered June 1, 1927, and not yet [officially] reported.

By bill of exception No. 2, appellant complains of the action of the court in permitting a witness for the state to testify over liis objection that Paint Rock school district No. 75 was a corporation; his contention being that parol testimony was not the best evidence of the incorporation of said district. The record discloses that, after the witness had given the testimony complained of, the order of the commissioners’ court establishing and redefining said district was introduced in evidence. The bill of exception manifests no reversible error.

By bill of exception No. 3, appellant complains of the action of the court in permitting a witness for the state to testify, over his objection, that Paint Rock school district No. 75 voted bonds and had voted bonds, appellant’s contention being that the testimony was not the best evidence of the incor-pioration of said district. We are unable to perceive how this testimony could have resulted in injury to appellant, inasmuch as the record shows that the order of the commissioners’ court redefining and establishing the district was introduced in evidence. We are constrained to hold that no prejudicial error is manifested by the bill. '

By bill of exception No. 4, appellant complains of the action of the court in permitting the accomplice witness Davidson to testify over his objection, to declarations made to him by appellant, while they were cn their way to the schoolhouse. As shown by the bill, the ■ witness had testified that, after the sack had been thrown out of the automobile, appellant said he was going to burn George Moncrief’s barn. Appellant objected to this testimony, and the court withdrew it from the jury. The witness was then permitted to testify", over appellant’s objection, that he and appellant went back of George Moncrief’s and started to the barn, that the mules began to snort, and that appellant said, “We had better not go.” Appellant objected to the testimony on the ground that it' referred to extraneous matters, was irrelevant, immaterial, and prejudicial. It is noted that appellant’s bill is not guredicated on the testimony withdrawn from the consideration of the jury, but solely on the theory that the statements of the witness relative to the fact that he and appellant started toward the barn, and that appellant said that they had better not go were prejudicial. Appellant’s bill of exception fails to show when the transaction occurred with reference to the time of the burning of the schoolhouse. Nothing is shown in the bill that would in any manner negative the idea that the transaction and declaration was part of the res geste. The legal presumption is that the ruling of the trial court was correct, unless the bill of exception shows otherwise. We are unable to say that the presumption of the correctness of the ruling of the trial court is rebutted, in view of the fact that we cannot determine whether the transactions complained of were part of the res geste. The rule as announced in the decisions of this court is that a bill of exception should be made so full and certain in its statements as that, in and of itself, it will disclose all that is necessary to manifest the supposed error. Branch’s Annotated Penal Code, § 207; James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612. It follows that appellant’s bill of exceptions manifests no error.

By bill of exception No. 5, appellant complains of the action of the court in permitting the accomplice Davidson to testify over his objection that appellant stated to him that he (appellant) was going to burn the Paint Rock schoolhouse to hide the Rock-dale fire. The court qualified the bill as follows:

“The above proceedings took place not more than five minutes before the building was burned, and while the accomplice and the defendant were approaching said building, and the court admitted said evidence for the reason that it was admissible as direct testimony and as res gestee.”

As qualified, the bill manifests no error.

We have carefully examined bills of exception No. 6 to 9, inclusive, and find that they manifest no error.

By bill of exception No. 10, appellant complains of the action of the trial court in permitting a witness for the defendant on cross-examination to testify, over his objection, that the testimony was with reference to extraneous matters, was irrelevant, prejudicial, and not relative to any issue in the case, that appellant stated to him before the fire and while they were hunting that he (appellant) had $981 which he had received for burning houses. It is not necessary to cite authorities in support of the proposition that proof of extraneous crimes should be excluded unless same comes within one of the recognized exceptions. The record does not disclose that' a statement by appellant that he had received $981 for burning houses is material to any issue in the case. In the absence of an issue upon which such testimony would have material and pertinent bearing, it could have no other effect than to show that appellant was a criminal generally. Proof of the fact that one is a criminal generally is conceded to be prejudicial. Briggs v. State, 103 Tex. Cr. R. 136, 280 S. W. 775. Believing that the bill of exceptions manifests prejudicial error, we are constrained to uphold appellant’s contention that the learned trial judge fell into error in admitting the testimony.

By bill of exception No. 11, appellant complains of certain statements made by the county attorney in his argument, on the ground that there was no evidence to support it, except the unsupported testimony of an accomplice, and that said statements were harmful and prejudicial. Wé do not understand that the state’s attorney may not discuss the testimony of an accomplice and draw therefrom reasonable deductions, and are constrained to hold that appellant’s bill of exception manifests no error.

Appellant’s bill of exception No. 12 manifests no error. Appellant’s witnesses testified that he was at a place other than the schoolhouse on the occasion of the fire. In his argument the county attorney used language as follows:

“Where is that testimony, gentlemen, that would warrant you to believe that Pete Enix, at the time of setting fire to that schoolhouse, was anywhere other than there with a coal-oiled sack and a match in his hand. Davidson said he was, didn’t he?” •

In view of the fact that appellant had other witnesses who testified on the issue of alibi, we do not understand that the language could be construed to be either a direct or indirect reference to the failure of appellant to testify.

Eor the error pointed out, the judgment is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      cg=oEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     