
    MOORE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 3, 1912.)
    1. Arson (§ 25) — Prosecution—Issues.
    In a prosecution for the burning of a building to secure the insurance thereon, it must be shown, where the accused was not the owner, that he knew of the insurance, and that he burned the building at the instigation of the owner or some one else to defraud the insurance company.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 52-54; Dec. Dig. § 25.]
    2. Ckiminal Law (§ 561) — Evidence—Sufficiency.
    In order to convict one accused of burning a building to obtain the insurance, proof of guilt must be made beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1267; Dee. Dig. § 561.]
    3. Criminal Law (§ 400) — Evidence—Best and Secondary Evidence.
    In a prosecution for arson, where the theory of the prosecution was that accused burned a building to enable the owner to obtain the'insurance thereon, parol evidence that the building was insured is inadmissible, where it is not shown that the insurance policies themselves could not by diligence have been obtained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. § 400.]
    4. Criminal Law (§ 1169) — Evidence— Waiver.
    Where evidence is erroneously admitted, accused’s introduction of testimony to meet it does not cure the error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3137-3143; Dec. Dig. § 1169.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Amos Moore was convicted of arson, and appeals.
    Reversed and remanded.
    Hart, Mahaffey & Thomas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Fcr other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

The indictment charges appellant with arson, in that he set fire to and burned a house belonging to B. C. Pharr, in the city of Texarkana, near other houses, and being insured, and so located that the firing and burning of the same endangered the lives and properties of others.

The case was tried upon the theory entirely that the house was burned for the purpose of obtaining the insurance on it. The evidence shows that the house belonged to B. C. Pharr, and appellant was his employs at his woodyard, which was some distance from the burned residence. The theory of the state was that appellant, at the instigation of Mrs. Pharr, burned the house, and many questions were asked and rigid examination made of witnesses by which it was sought to show that some of the contents of the house had been removed shortly before it was burned. The state further offered evidence to the effect that defendant and one Mary Williams were at the house shortly before the burning occurred, at least shortly before the fire was discovered which destroyed the house. There seems to have been no attempt to connect Mr. Pharr with instigating appellant to burn the house. The house was insured for something like $3,000. The value of the house and contents as shown by the evidence varied. Pharr testified the house cost him about $3,200, and the contents and house were worth something over $5,000. He received about $2,800 from the insurance companies. Pie estimated his clear loss as being about $2,500. The house was rather handsomely furnished, at least far above the average in furniture and rugs and dining room appointments. Appellant had no interest in the insurance. He was a negro employs about the woodyard, and had no interest in the property. Upon this theory, and this was the theory upon which the case was submitted, appellant could only be held responsible for burning the house for the benefit of Mr. Pharr, to the end that Mr. Pharr might receive the insurance. After the fire, Mrs. Pharr and appellant were arrested'. Appellant was held to await prosecution, and Mrs. Pharr discharged, and no further proceedings were had against her. (The writer wants to add that under the testimony for the state he does not understand how it was that Mrs. Pharr could have been connected with this transaction.) As before stated, the state did not undertake to connect Mr. Pharr with the burning or offering any inducement to appellant to burn the house. The submission of the case being confined to the proposition that the house was burned to obtain the insurance, it was therefore necessary to show defendant was induced to burn the house that-the insured party might be benefited.

1. Appellant requested the court to charge the jury that, before they could convict on the theory on which it was submitted, there must be some evidence to show that appellant at least knew that the building was insured at the time it was burned. The court was in error in not charging this phase bf the law. And not only so, but the court should have gone further, and charged the jury in this connection that simple knowledge of the fact that the house was insured was not sufficient.' We do not believe that knowledge alone would have been sufficient. Burning a house which is insured applies under the statute to the owner. If the owner burned the house, or had it burned, in order that he might get the insurance, he would be guilty.' If he employed some one else to bum the house in order that he might get the insurance, then both he and that agent would be guilty. The charge upon another trial should submit this theory of the law; and, while upon this subject it may be well enough to state that before they could convict appellant under the theory upon which this case was submitted, it must be shown beyond a reasonable doubt that he was guilty of burning the house in order that the insurance might be obtained. These observations are made in view of the fact that the court confined this case to the consideration by . the jury of the fact that the house was burned to obtain the insurance. The other features of the. indictment were not submitted to the jury; that is, that the house being in a town, and so located near other houses that the firing and burning of the same endangered the lives and properties of others, etc.

2. The. witness Watts, first witness introduced by the state, testified that he was a fire insurance agent employed by the fire insurance agency of F. W. Offenhauser & Co., in Texarkana, and was so employed at the time of and .prior to the burning of the house mentioned in the indictment. He was then asked the question whether or not the house was insured. Appellant interposed various objections for the' reason that the same was immaterial and irrelevant; that the policy or policies of insurance, if any, would be the best evidence; and that no predicate had been laid for the introduction of secondary evidence. Thereupon the witness was asked whether or not he had the policies. He answered this question in the negative, and stated that they had either been returned to the home office of the companies, or to the general office in Dallas, but he did not know which. Thereupon the court overruled the objections of defendant, and permitted the witness to testify that at the time of said fire said house was insured in two insurance companies (giving the names of the companies); the aggregate amount being $2,800. The objections were all overruled, and that testimony went before the jury. The court qualifies this bill by stating that the defendant introduced B. C. Pharr as a witness, and he testified on direct examination in full as to the value of the house destroyed, and household goods destroyed, the amount of each policy thereon, dates of policies, amounts, by whom issued, and the amount of his loss over the amounts of the policies, and the amount he collected on the policies, as shown by the statement of facts. With this explanation the bill is approved. The éxplanation of the court rather intensifies the error. These policies were not forthcoming at the trial. For this reason, the objections were urged to the introduction of secondary testimony. They were not at the insurance company’s offices in Texarkana, as stated by Watts. They had been sent away to some other office. It was not shown these papers could not have been by proper diligence produced. The testimony of Watts was erroneously admitted, and the fact that the witness Pharr subsequently testified for the defendant in the case did not cure the error in originally admitting the evidence of the witness Watts.

No rule seems to be better established, than the one that where testimony has been erroneously admitted, and the defendant is-thereby called upon to meet such testimony, the fact that he does introduce evidence to meet it does not cure the error. That ought to be considered as elementary.

3. The court gave a sort of general definition of principals, but did not apply it to the facts in submitting the issues to the jury. Upon another trial, this trouble will be avoided by giving a pertinent application of the law of principals to the facts.

For the errors indicated, the judgment is. reversed, and the cause is remanded.  