
    FISHER v. STATE.
    (No. 8542.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1925.
    Rehearing Denied April 15, 1925.)
    1. Criminal law <@=>1043 (2)— Bill of exceptions to admission of testimony at former trial not . considered on general objection.
    Bill of exceptions to admission of testimony given at former trial would not be considered by appellate court, where objection was made generally to whole of testimony, much of which was admissible and material.
    2. Witnesses <@=>240(3) — Question not leading because it may be answered yes or no.
    That a question may be answered yes or no does not make it leading.
    3. Arson <@=>33 — Evidence that party to arson spent forepart of night at defendant’s home held material.
    In prosecution for arson, evidence that alleged principal spent forepart of night at defendant’s home was material, in view of state’s contention that such party removed from house, during latter part of night and about time of fire, personal property belonging to defendant.
    4. Arson <@=>41 — Charge in prosecution for arson held not erroneous under the evidence.
    In prosecution for arson, charge that if defendant either alone or acting together with another did burn defendant’s house, etc., held not erroneous under the evidence.
    On Motion for Rehearing.
    5. Arson <@=>37(l) — Evidence held to sustain conviction.
    In prosecution for arson, evidence held' to sustain conviction.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    A. C. Fisher was convicted of arson, and he appeals.
    Affirmed.
    Tom Whipple and Will Hancock, both of Waxahaehie, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Ellis county of arson, and-his punishment fixed at two years in the penitentiary.

Appellant lived in the little town of Britton in the northwest corner of Ellis county. On the night in question his house and personal property therein burned. Appellant made sworn report to the insurance companies setting out that all of his property was destroyed. , Later it was discovered that a quantity of the property had been removed on the night of the fire and carried to Dallas and placed in a storage house by appellant’s brother-in-law, one C. J. Watts. One of the counts of the indictment charged Watts with being a principal offender in the commission of the offense.

On the trial the state introduced against appellant his testimony as given in a former trial, it appearing that prior to the time of the- instant trial, and upon an indictment charging the same offense and based on the same transaction, appellant was tried and a mistrial had. Appellant took the stand in his own behalf at said former trial. The stenographic report of his entire testimony was offered by the state and was objected to by appellant chiefly upon the ground that it was immaterial, irrelevant, and inadmissible. We would feel constrained to treat such a bill of exceptions largely as we do an exception to an entire argument made by the prosecutor. There is no question but that a part of the testimony given by the appellant on the former trial, and which was introduced here, would be pertinent. This court must decline to be driven to the point of searching through 10 or 15 pages of typewritten questions and answers to determine whether there be, in the testimony at the former trial which was introduced on this, anything not pertinent or material to the issue. If appellant desires this court to consider an objection of that kind, he should have selected such portions of the evidence as he deemed open to the objections, presented same to the court, and taken his bill of exceptions thereto. This court decided, in Roberts v. State, 89 Tex. Cr. R. 456, 231 S. W. 759, that the testimony given upon a former trial, which was of any pertinence or materiality to the issues involved in the instant trial, would be admissible.

We are unable to grasp the weight of the objection to the testimony of Miss Parsley, who said that she spent the night at the horde of appellant, on the night of the fire, and that O. J. Watts was at said house in the early part of said night. That a question may be answered yes or no does not make it leading, and in view of the state’s contention that Watts was a party to the alleged arson, and that he did in fact remove from the house during the latter part of the night, and about the time of the fire, certain personal property belonging to appellant, it became material to ascertain his presence there during the forepart of said night.

Watts was at appellant’s house when the fire broke out. He was appellant’s brother-in-law and, according to' the testimony, placed articles of value to appellant in a truck while the house was burning and departed at once and carried said articles to Dallas and placed them in a storage house in his name, stating that the stuff came from Mansfield. The court in his charge told the jury that if appellant either alone or acting together with C. J. Watts * * * did willfully set fire to and burn said house, etc. Exception was taken to this on the ground that there was no evidence connecting Watts with the burning of the house. We regret our inability to accede to this contention, and see no error in the court’s action. The case was dependent on circumstantial evidence both as to Watts and to appellant. Both were present when the fire began, and Watts removed the property mentioned and departed before the house was consumed. Substantially the same complaint is evidenced by another bill of exceptions, and in neither of them do we think any error appears.

This disposes of the complaints shown in the various bills of exception, and being of opinion that error is not shown, and that the facts1 support the verdict, an affirmance will be ordered.

On Motion for Rehearing.

We made no statement in our original opinion that appellant tried to collect insurance on the property carried away from his residence on the night of the fire by his brother-in-law, and what we said in regard to the fact of the property being so removed and taken to Dallas was in strict accord with the facts as they appear in the record. Nor did we decline to consider, on the ground that it was in question and answer form, appellant’s bill of exceptions taken by him to the introduction on behalf of the state of all of the testimony given by app'ellant at a former trial. The opinion does state that we would decline to read through so many pages of typewritten questions and answers, etc.; but it is clear from the reading thereof thát we placed our refusal to consider the bill upon the ground that the exception taken was but a blanket or general exception taken to the whole of the testimony, much of which was admissible and material. Said testimony .was introduced by the state as part of its case in chief, and when it had no knowledge of the fact that appellant would take the witness stand. Many of 'the admissions contained in said statement were material to show that appellant was present at the time of the fire, and to show his conduct and that of his wife and brother-in-law. This court has in many cases declined to consider general objections to lengthy matters, part of which are admissible. See section 211, Branch’s Annotated P. O., for authorities.

Appellant complains of various short expressions in our opinion which will not be noticed, but his chief complaint in his motion is that, we erred in holding the- testimony sufficient to support the conviction.

Appellant’s house and its contents burned on the night of November 23, 1921, at some time approximately 2 o’clock in the morning. The house was situated in Britton, which little town is located about the line of Ellis and Tarrant counties. Appellant lived in Ellis county. An examination of the record discloses no suggestion of any natural cause from which the fire could have occurred, nor is there anything in the testimony of appellant or any other occupant of his house which would indicate or point to the probability of the fire being caused other than by an incendiary. The house was insured for $800 and its contents for $500.. The location and movements of appellant’s brother-in-law, O. J. Watts, appeared material. The state introduced a Miss Parsley, who testified that on the night of the fire she was sitting úp with Watts’ wife’s mother at the Watts home, some few miles in the country from Britton, and that about midnight Watts left said home in his car. Our statement in the original opinion, that Miss Parsley spent the night at the home of appellant was wrong. A near neighbor of appellant testified that about 10 minutes before 1 o’clock on that night, she was waked by the sound of a motor vehicle, said noise coming apparently from a vehicle leaving appellant’s house and going up toward the main street of said town. She got up and looked toward appellant’s house and saw a light in the room of the house nearest her home. She did not go to sleep again, and in about an hour heard the screaming and saw the fire that destroyed appellant’s home. Of the neighbors who lived around appellant near by and came at once to help put out the fire or in any other way, none saw or heard Watts leave the premises in his car at or about the time of the fire.

Mrs. Fisher, appellant’s wife, took the the stand in his behalf, and on cross-examination admitted that she had told parties that they lost everything in the fire. She further testified that she did not know that her brother, Watts, had taken any of the property away from their premises on the night of the fire until her husband told her of it as they were going up to Mr. Ollmon’s after the. fire was over. Appellant testified and said that when he was waked the house was on fire, and that when he got on the outside he found Watts already had some things loaded in his automobile and that he left with them before any of the neighbors gathered in. He said he had not spoken to Watts before he had the car loaded and did not know he was loading it, nor how came Watts to load it. ne said Watts aáked him what to do with the stuff and that he told him to take it away to save it, and swore he did not know Watts was going to take it to Dallas, nor did he tell him where to take it. The state also proved by tbe insurance people that on the list given them by appellant of his household goods which were destroyed by fire appeared a phonograph valued at $185, and they said they asked appellant why the metal parts of this phonograph were not discovered in the ashes, and he said he supposed the boys or some one had carried them away. It was proven that on the night of the fire appellant’s brother-in-law, Watts, carried to Dallas in his car property belonging to appellant, consisting of a trunk in which was some silverware and some clothing about which Mrs. Fisher made the peculiar statement that it was “too good to be disposed of”; also, a Yictrola or phonograph, two mattresses, and a quilt. The storage man at Dallas testified that when Mrs. Fisher came after the articles on the 25th of November and he produced them, she asked him where “the other quilt was.” It was further shown by the state that appellant went to Dallas to, adjust his fire loss something like a week afterward and after it had been discovered by the insurance people that part of the property had been put in storage on the morning after the fire. The adjuster asked appellafit to make him a sworn statement as to the property lost, and an oath was administered to appellant by a notary public, and after having been sworn, questions were asked him regarding the property, and he said that his phonograph was destroyed in sajd fire. The specific question was put to him regarding the phonograph and property brought by Watts and put in storage, and he was asked if that was his. He denied it. Later in the day he telephoned back to the adjuster’s office and told him he would not come back and sign the statement which he had made, that he had lied about the phonograph, etc. Asked why he did so, he replied that “they talked me into it.”

We have thus stated some of the material facts relied on oy the state as showing appellant guilty of the burning of the property. We regret that we cannot agree with appellant’s contention that the evidence is insufficient to justify the conclusion of guilt reached by the jury.

The motion for rehearing will be overruled. 
      <@=sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     