
    ARNOLD v. STATE.
    (No. 3042.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. Arson (§ 18) — Indictment—Accomplice.
    Under Pen. Code 1911, art. 1200, defining arson as the willful burning- of any house, and article 1207, providing that the owner of a house may destroy it by fire without incurring the penalty of arson, except in cases mentioned in article 1208, among which exceptions is when a house is insured, an indictment charging accused with procuring another to burn his house, which was insured, need not allege that the person who set fire to the house knew that it was insured.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 30-32, .34-37; Dec. Dig. § 18.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 507-509; vol. 8, p. 7582.]
    2. Arson (§ 18) — Indictment—Accomplice.
    Nor was it necessary to allege by whom or by what authority the house. .was insured; an allegation in the language of the statute that it was insured being sufficient. ■
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 30-32, 34-37; Dec. Dig. § 18.*]
    3. Arson (§ 25) — Prosecution—Issues—Accomplice.
    Under Pen. Code 1911, art. 1208, making one who burns his own house, which is insured, guilty of arson, it is not necessary that the property was burned with intent to defraud the insurance company, and therefore the state need not prove that the insurance policy was valid or was issued by a company authorized to do business within the state.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 52-54; Dee. Dig. § 25.]
    4. Arson (§ 25) — Prosecution—Issues—Accomplice.
    Where an indictment, charging the defendant with procuring another to burn his insured house, alleged that the other maliciously set fire to the house, and that the defendant paid the other a certain sum of money in another county, the state need not prove the malice, or the payment of the exact sum, or that the payment was in the named county, which allegations were not necessary to constitute the offense, since the rule that, when a person, place, or thing necessary to be alleged in an indictment is particularly described, it must be proved as described does not apply to allegations, which are mere surplusage.
    LEd. Note. — For other cases, see Arson, Cent. Dig. §§ 52-54; Dec. Dig. § 25.]
    5. Criminal Law (§ 351) — Evidence — Flight — Forfeiture of Bail. .
    Where defendant had been previously indicted for the same offense in another county under & defective indictment, and had there forfeited his bail, the indictment and the order forfeiting the bond are admissible to show flight.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.]
    6. Criminal Law (§ 1091) — Appeal—Bills op Exceptions — Sufficiency — Admission of Evidence.
    . Where defendant was charged with procuring another to burn his insured house, bills of. exceptions complaining of the admission in evidence of the insurance company’s policy and its assignment to defendant, over objections that it had not been shown that the insurer had authority to issue the policy or that it was properly executed by an authorized agent, which bills did not contain a statement of the facts which rendered the instruments inadmissible, are not sufficient; the statement of objections made not being a statement of facts.
    [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.]
    7. Arson (§ 31) — Evidence — Insurance Policy — Foundation.
    Evidence that the defendant was an agent of the insurer and procured the issuance of the policy to the one who subsequently assigned it to him, that he took the policy to the company’s agent and had it transferred by the agent to himself after the assignment, that practically as part of the same transaction he hired another to burn the property in order that he might collect the insurance, and thereafter attempted to collect the amount of the policy and accepted a part thereof in settlement, was sufficient foundation to justify the admission of the policy and assignment in evidence.
    [Ed. Note. — For other cases, see Arson, Cent. Dig. §§ 65-68; Dec. Dig. § 31.]
    8. Criminal Law (§ 507) — Evidence—Testimony of Accomplice.
    Where defendant was charged with procuring another to hura his building, a .brother of the one who set the fire, who was a material witness for the prosecution, and whose only connection with the prosecution was that after his brother’s arrest he aided in procuring an at-torfley and induced defendant to pay the attorney’s fees as part of the amount he agreed to pay for starting the fire, was not an accomplice of the defendant, whose testimony must be corroborated to sustain a conviction under Pen. Code 1911, art. 87.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§> 1082-1096; Dec. Dig. § 507.]
    9. Criminal Law (§ 1166]4) —Appeal — Harmless Error — Error Favorable to Accused.
    Error in submitting to the jury the question whether the brother was an accomplice was favorable and not prejudicial to the accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § II6614.]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    D. S. Arnold was convicted as an accomplice to arson, and he appeals.
    Affirmed.
    
      Mahaffey, Thomas & Hughes, of Texarkana, A. S. Baskett, of Dallas, and Hiram Glass, of Austin, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of accomplice to arson and assessed the lowest punishment authorized by law. ■

After the formal part of the indictment, it avers that on or about September 19, 1910, T. E. Allen did “unlawfully, willfully, and maliciously set fire to and burn a certain house of one D. S. Arnold, * * * said house being then and there insured against loss and damage by fire,” and “that D. S. Arnold, in said county and state aforesaid, and before the commission of said offense of arson, by the said T. E. Allen as aforesaid, to wit, on or about the 1st day of September, A. D. 1910, did unlawfully and willfully promise and agree to pay to him (the said T. E. Allen) the sum of $500 in order to procure him (the said T. E. Allen) to commit the offense of arson as aforesaid, and by such promise and agreement did procure and induce the said T. E. Allen to burn said house aforesaid, which was then and there insured against loss or damage by fire, and in order to procure and collect the insurance on said house; the said D. S. Arnold not being present at the commission of said offense by the said T. E. Allen.”

Appellant moved to quash said indictment on these grounds: (1) It failed to allege any offense. (2) It failed to allege or sufficiently allege the commission of any offense by Allen. (3) It failed to allege facts sufficient to show Allen guilty of Arson, particularly that the house burned by Allen, when burned, was owned by appellant, and no facts were alleged which made it unlawful for him to burn his own house, except that it was insured against loss or damage by fire, and that it was not burned by Allen with appellant’s knowledge, consent, and procurement, and that Allen knew when he burned it that it was so insured; nor were any facts alleged which show that Allen knew of any facts existing which would have made it unlawful for appellant to burn or cause it to be burned, nor that Allen knew that his (appellant’s) purpose in procuring the burning was to procure the insurance, nor to enable him to collect the insurance. (4) It is not alleged by whom or in what manner or by what authority the house was insured; neither are any facts alleged from which can be determined that said house was insured when burned.

Our statute (article 1200, P. O.) says:

“ ‘Arson’ is the willful burning of any house. * * *»

Article 1207, P. C., is:

“The owner of a house may destroy it by fire * * * without incurring the penalty of arson, except in the cases mentioned in the succeeding article.”

Article 1208, P. C., is:

“Exceptions. — When a house * * * is insured * * * the owner, if he burn the same, is guilty of arson, and shall be punished accordingly.”

Appellant’s motion to quash was correctly overruled. The indictment completely follows the statute and alleges everything necessary or proper to properly charge the offense of accomplice to arson against the appellant. It follows the standard forms. As to the principal, Allen, it was not necessary for the indictment to allege, only in the terms of the statute, that the house was insured, in order to charge him as principal with the burning. It was not necessary to allege that Allen knew that the house was insured. That was a matter of defense by him if he had been on trial as principal, and was a matter of defense, so far as appellant was concerned, when he was charged as an accomplice to the arson. Neither was it necessary to allege by whom or by what authority the house was insured. It was only necessary to allege that it was insured, under the very statute itself. Baker v. State, 25 Tex. App. 1, 8 S. W. 23, 8 Am. St. Rep. 427; Tuller v. State, 8 Tex. App. 501; Thomas v. State, 41 Tex. 27.

Appellant contends that, before the state could secure his conviction, it was necessary for the state to prove that appellant had a valid insurance policy issued by some company authorized and permitted to do so, and that it was necessary for the court, in his charge, to explain to the jury what was meant by insured against loss or damage by fire. These questions are raised and presented in various ways.

Wp have quoted our statutes above, applicable to these questions. It will be seen therefrom that our statute does not require that the intent of an appellant, when he burns insured property, is to defraud the insurance company. The offense is simply and solely that the property is insured at the time he burns it. That this is not required is made manifest when we consider article 1220, P. C., which provides:

“If any person, with intent to defraud, shall willfully burn any personal property owned by himself which shall be at the time insured against loss or damage from fire, he shall be punished,” etc.

Under that article it would be necessary to allege and prove that in burning the insured property it was with intent to defraud.

In 2 Whart. Or. Law, § 1077 (11th Ed.) he says:

“Under a statute making it an offense to bum insured property with intent to defraud the insurer, the burden is on the prosecution to prove that the property was insured; some of the eases hold that the proof must show a valid, subsisting insurance, as the statute prohibits only the burning of property actually insured; but the better opinion is thought to be that the gravamen of the offense is the burning of the property with the intent to injure the insurer by realizing the insurance, and that the legality of the policy, or the right of the insurance company to do business in tbe state, is not a material issue, and it will be sufficient to show the delivery of a policy of insurance to the defendant, without showing that the insurance was valid and he could collect thereon” — citing the decisions of several states.

In 1 Ency. of Ev. p. 987, it is said:

“It is unnecessary to prove the legal existence of the insurance company, nor the validity of the policy of insurance issued to the accused, nor that the latter could sue upon such policy” — citing a large number of cases from various states and from the United States Supreme Court.

3 Cyc. 1003, says:

“It must be alleged that the property burned was at the time insured against fire; but the indictment need not aver that accused held a valid policy or any policy, nor need the policy be set forth according to its tenor” — citing a large number of cases.

In 5 A. & E. Ency. of Law & Prac. 596, it is said:

“It has been held that the insurance policy need not necessarily be valid if the defendant believed it to be valid.”

That author notes, however, that the authorities do not uniformly so hold.

In support of these texts and fully bearing them out, the following cases are cited: U. S. v. Amedy, 11 Wheat. 392, 6 L. Ed. 502; State v. Byrne, 45 Conn. 273; McDonald v. People, 47 Ill. 533; People v. Hughes, 29 Cal. 257; People v. Morley, 8 Cal. App. 372, 97 Pac. 84; Johnson v. State, 65 Ind. 204; People v. Jones, 24 Mich. 215; Parb v. State, 143 Wis. 561, 128 N. W. 65; State v. Tucker, 84 Mo. 25; Cowan v. State, 22 Neb. 519, 35 N. W. 405; Commonwealth v. Goldstein, 114 Mass. 272; People v. Schwartz, 32 Cal. 160; U. S. v. McBride, 7 Mackey (D. C.) 371; Carncross v. People, 1 N. Y. Cr. R. 518; Freund v. People, 5 Parker, Cr. R. 198; Evans v. State, 24 Ohio St. 458.

Appellant invokes the rule which is well established to the effect that, when a person, place, or thing necessary to be alleged in an indictment is described particularly, all of the descriptions must be proved, for they are made essential to the identity of the person, place or thing. He attempts to apply this to various things in the indictment. Thus the indictment, as shown above, alleged that said Allen “unlawfully, willfully, and maliciously set fire to and burned said house.” He claimed that because the indictment used the word “maliciously,” unless the court required that this should be proven, and that it had been proven, they must acquit appellant. Again the indictment copied above, among other things, alleges that appellant, in Somervell county, Tex., before the commission of this offense, promised and agreed to pay Allen $500 to procure him to burn said house. He claims that the state was bound to prove that he promised and agreed to pay Allen $500, no more and no less, and that the state must prove that this agreement to pay this money was in Somervell county and not elsewhere. In our opinion none of these contentions can be sustained. It is wholly immaterial where appellant was when he agreed and . promised to pay Allen $500 to burn said house. It is no part of a necessary allegation to show the offense. It was not necessary to so allege. That part of the allegation not only could but should be regarded and treated as sur-plusage. See Goodwin v. State, 158 S. W. 275; Byrd v. State, 162 S. W. 360; Thompson v. State, 152 S. W. 894; and a large number. of cases cited in these. The text-books are to the same effect.

An indictment which alleges the theft of two horses is met by proof of the theft of only one of them. It is unnecessary to prove the theft of both. Alderson v. State, 2 Tex. App. 10; Edwards v. People, 26 Colo. 541, 59 Pac. 56; Edson v. State, 148 Ind. 283, 47 N. E. 625; 1 Whart. Crim. Ev. § 129. Where the theft of a specific amount of- money is alleged, proof that any sum, either more or less, was stolen, is sufficient. Robinson v. State, 62 Tex. Cr. R. 646, 138 S. W. 704. An indictment alleging that strychnine was mingled with coffee with the intent to kill two persons, naming them, proof that the intent was to kill only one of them was sufficient. Terry v. State, 62 Tex. Cr. R. 73, 136 S. W. 485. See, also, Mansfield v. State, 17 Tex. App. 468; Monford v. State, 35 Tex. Cr. R. 239, 33 S. W. 351; Scott v. State, 46 Tex. Cr. R. 305, 81 S. W. 950; Nite v. State, 41 Tex. Cr. R. 342, 54 S. W. 763.

2 Bish. New Crim. Proc. § 478, says:

“Needless words and averments may ordinarily be treated as mere waste material, having no legal effect whatever. They need not be proved or otherwise regarded. For example (section 479), an indictment either on a statute or at the common law, fully setting out the offense, is not rendered ill by the addition of matter aggregating it beyond the laws defining.”

In Howard v. State, 143 S. W. 181, the indictment alleged the forgery of an instrument “with intent to injure and defraud.” It was held the court correctly charged that if appellant forged the instrument with intent to injure or defraud, etc. Berliner v. State, 6 Tex. App. 182.

Previous to the indictment in this case, appellant had been indicted for the same offense in Somervell county, arrested, and made bond therein. The state sought to show, and introduced testimony tending strongly to show, flight by appellant, and as bearing on this issue it introduced in evidence the previous indictment which seemed to have been defective, and the judgment nisi therein forfeiting his said bond. Appellant objected to this because the indictment was in a different case; that it was defective and charged no offense, was immaterial and irrelevant, etc. The court, in qualifying his bill, stated that the state sought to show his flight to avoid trial at a previous term of court for the offense for which he was at this time being tried, though under different indictment. This evidence, in our opinion, was admissible for the purpose, as indicated by the court’s qualification.

Appellant has two bills of exceptions. After giving the style and number of the cause, etc., one of them states that the state offered in evidence wbat purported to be a certain policy of insurance issued to J. L. Keaton by the Ginners’ Mutual Underwriters of San Angelo, unincorporated, borne office Dallas, Tex., an organization of gin owners for mutual protection against loss by fire, wind, or lightning, as provided by the terms of such policy (which is too lengthy to be copied in the bill), purporting to insure the house described in the indictment, and the machinery, etc., therein contained, against all direct loss or damage by fire in the sum of $1,400, purporting to have been executed by said concern July 15, 1910, by and through L. A. Murff, manager; said policy being the same and only one offered or introduced in evidence by the state. This is the whole substance of the statement in the bill pertaining to the matter. No other statement whatever is made as to the status of the case, the proof, or anything else. Then follows appellant's objections to the introduction of said policy. They are: (1) It is not issued by any corporation, but by an organization of gin owners, and the state had not proved who any of them were or who constituted such organization. (2) That it was not shown that Murff, who purported to act as manager, had any authority from said concern to act for them or execute and deliver said policy. (3) That it was not shown that Murff executed said policy. (4) Its execution was not proven by the state. (5) It was not shown that said concern had complied with the laws of the state or were authorized thereby to issue said policy. The bill then states these objections were overruled, and the policy was admitted in evidence. The court qualifies the bill by stating that on said policy which was issued to said Keaton, the then owner of the gin, it was transferred to defendant in writing by Keaton after defendant traded for the gin, and the signature of Keaton to said transfer was proven, and the defendant in writing accepted the transfer and signed the .acceptance, and his signature thereto was proved, and after the fire he attempted to collect the insurance under said policy.

The other of said bills, after the formal parts, style, number of cause, etc., stated that the state offered in evidence the said transfer of Keaton to him and the acceptance, etc., of said transfer by said Ginners’ Mutual Underwriters, which was in the following language:

“For and in consideration of the above application, the terms of which is made a warranty on the part of D. S. Arnold of Dallas, Tex., to assume the payment of all dues and assessments now due or that may become due on policy No. 1593, issued to J. L. Keaton of Glen Rose, Tex., and that the said D. S. Arnold of Dallas, Tex., warrants and agrees to abide by all of the conditions of the policy, and of the application for said policy. The Ginners’ Mutual Underwriters of San Angelo does this day cause said policy to be transferred to the said D. S. Arnold of Dallas, Tex. This the 3d day of Sept. 1910. Ginners’ Mutual Underwriters of San Angelo, L. A. Murff, Manager.”

Appellant objected to this for substantially the same reasons as to the introduction of the policy above noted. The court qualified the bill by stating that defendant testified he knew Murff as manager of the Gin-ners’ Mutual Underwriters of San Angelo, and that upon receipt of the policy by mail from Keaton of Glen Rose, Tex., he (defendant) personally took said policy to the office of Murff in Dallas for the purpose of having said Murff to execute the transfer set out in the bill; that Murff was not'iff the office at the time, and that he left it in said office with Murff’s employé to be executed upon Murff’s return; that defendant returned to said office the next day, and Murff’s stenographer handed to him the policy so transferred and executed, as sljown by this bill; that Murff was not in the office on defendant’s return for the policy. And he further testified that on learning of the fire he immediately went to the office of Murff and notified him of the fire and had Murff to phone and ascertain whether or not the gin was actually burned.

These bills and neither of them, under the long and well-established rules, are sufficient to authorize or justify this court to consider them. Some of these rules are noted in James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612, and Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Best v. State, 164 S. W. 997. By said rules it is clearly established that appellant’s objections in the bill are not statements of facts, and that the judge signing the bill does not certify that such objections are statements of facts, but his signature merely attests .the fact that such objections were made. We could not, from these bills, tell whether these documents were admissible in evidence or not, except that the court’s qualification of them indicates that they were admissible. The duty of appellant is to show by the bills affirmatively by a statemént of facts, and not by objections, that the evidence was inadmissible, and, unless he does so, we must hold that the court correctly overruled same. As an illustration of why this is necessary, we would be put to the necessity of going to a statement of facts in this case, which is in fine typewriting, containing 110 pages, and in the ordinary type it would amount to at least 125 pages, and search this whole statement of facts to learn whether or not this evidence was admissible.

But, if we were to go to it, we would find that the facts and circumstances therein shown would clearly show that these documents objected to were admissible in evidence, and that they were amply proven up. What we have said above about the policy of insurance, and what the state has to show, is applicable to this question, so far as the merits of the introduction of the policy transferred and acceptance by the company are concerned. Briefly stated, it -shows that appellant himself was the agent of said insurance concern that induced Keaton to insure said house and said concern to issue to Keaton said policy; that very soon afterwards he bought this insured property from Keaton, took a deed therefor to him, and had Keaton at the time to transfer and deliver said policy to him; that he took the poiicy himself to the insurance concern with Keaton’s transfer to him and had the company to assent thereto and so indorse its consent on said policy and redeliver the same to him; that as soon as he got the deed to the property and policy,' and practically as part of the same transaction, he hired said Allen to burn the gin in order that he might get the insurance thereon, agreeing to pay Allen either $500 or half of the insurance; that he» at the same time and in the same trade turned the property over to Allen as his agent and manager for said purpose; that Allen, in accordance with his agreement with appellant, burned said gin; that at the time he got the policy he regarded it as a valid policy and so regarded it after the burning; that he put it in his attorneys’ hands for collection and suit, if necessary, and that afterwards he authorized Mr. Alexander to settle policy with the company for him, and that Alexander did settle it with the company, and that he got part of the proceeds of what the company paid in settlement therefor. The evidence on some of these issues was contradictory, but it was amply sufficient to show the facts stated above. So that, even if we could consider the said bills, they present no error, and the evidence objected to thereby was admissible.

One of the material witnesses against appellant was J. W. Allen, the brother of T. E. Allen, who was appellant’s agent, and whom he hired to burn, and who did burn, said gin for him. T. E. Allen was indicted and convicted for burning said house. He appealed the case to this court, and it was affirmed, being reported in 62 Tex. Or. R. 501. i As soon as T. E. Allen was arrested, his brother, J. W. Allen, undertook to aid him in his defense and to assist in the employment of his attorneys. He had information that his brother had been employed by appellant to burn said gin in order to get the insurance, and that, in order to induce T. E. Allen to burn it, appellant had agreed to pay him $500 or one-half of the insurance, as stated-above. J. W. Allen sought repeatedly to induce appellant to pay T. E. Allen’s attorneys’ fee and to pay him what appellant had agreed to pay T. E. Allen to burn said house. The evidence is sufficient to show, and the jury was authorized to believe, that appellant did convey the lot, on which the gin had been burned, indirectly to one of T. E. Allen’s attorneys as a fee for defending T. E. Allen. This is the sole connection that J. W. Allen had with the offense. There is no intimation that he was a principal or accomplice to the arson, and that what he did after both offenses were completed — the arson and the accomplice to arson — was directly aiding his brother in the defense of his suit and, after his conviction, seeking to have him pardoned. This, neither under the statute nor decisions, made him an accomplice, so that his testimony had to be corroborated. P. C. art. 87; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Davis v. State, 62 Tex. Cr. R. 537, 138 S. W. 396; Smith v. State, 51 Tex. Cr. R. 141, 100 S. W. 924; Robertson v. State, 46 Tex. Cr. R. 442, 80 S. W. 1000; Chenault v. State, 46 Tex. Cr. R. 355, 81 S. W. 971; Holley v. State, 49 Tex. Cr. R. 307, 92 S. W. 422, 122 Am. St. Rep. 810.

So that the court did not have to charge that J. W. Allen was an accomplice or submit that question to the jury and require that his testimony be corroborated, but, as the court did submit the question and require his testimony to be corroborated, this was in appellant’s favor and not against him, and, even if any error had been made as claimed in the charge on this subject, it would present no reversible error. The evidence was clearly and amply sufficient to sustain the conviction.

While we have not taken up each and every one of appellant’s assignments of error, what we have said embraces and disposes of all of them. It was not necessary to take up each separately.

There is no reversible error shown in the trial of this case, and the judgment will be affirmed.  