
    CASSEL v. STATE.
    (No. 7139.)
    (Court of Criminal Appeals of Texas.
    Jan. 17, 1923.
    Rehearing Granted Feb. 21, 1923.)
    1. Criminal law <&wkey;l 112 — Affidavit by state’s witness qualifying statement imputed to him in bill of exceptions to exclusion of testimony relative thereto not considered.
    Affidavits of a state’s witness qualifying a statement, imputed to him in a bill of exceptions to the court’s refusal to permit him and another witness to answer questions designed to establish the making of such statement cannot be considered.
    2. Witnesses <&wkey;>379(2) — Exclusion of testimony as to contradictory statement by state’s witness held reversible error.
    In a prosecution of an accomplice in the commission of arson by his employé, refusal to permit, cross-examination of another employé, who had testified that defendant' first sought his aid in committing the crime, as to an alleged statement by him, on the day after the fire, that he had found defendant as honest and clean a man as he ever had dealt with, and exclusion of testimony as to such Statement by the person to whom it was made, held reversible error.
    Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.
    Vannie Cassel was convicted of being an accomplice to the crime of arson, and he appeals.
    Reversed and remanded.
    Beavers & Mansell, of Winnsboro, and Dial, Melson, Davidson & Brim, of Sulphur Springs, for appellant.
    W. A. Keeling, Atty. 'Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellant was convicted in-tlie district court of Franklin county of the offense of being an accomplice to the crime of 'arson, and his punishment fixed at two years in the penitentiary.

It appears in the record without dispute that on the night of July 19, 1921, a storehouse belonging to J. M. Dupree and others and occupied by appellant as a place of business was set on fire by Ferman Sharber, who was caught in the act. Sharber testified for the state herein, claiming that he set this fire and another which occurred some weeks earlier at the instigation and upon employment of appellant. Sharber was necessarily an accomplice witness. The question of the sufficiency of the testimony to corroborate him has given us trouble.

John Bradford testified that he and Shar-ber worked for appellant, they being the only employes; that on Wednesday before the fire on July 19th, which was the Monday following, appellant came to him and asked him if it would suit him to “pack the books and have the building burned and he he in Winnsboro.” Witness said he told appellant it would not suit him at all. On cross-examination this witness said that it was on Wednesday, and that appellant “asked me to pack the books and burn the building. He told me he had been thinking about it, and wanted to know how it would suit me, and I told him it would not suit me.” Bradford was discharged on Saturday following this Wednesday. On Monday night the building was set on fire by Sharber. Appellant went to Winnsboro in Wood county that afternoon and was in Winnsboro at the time of the fire. Sharber swore that appellant had employed him to set said fire. The fact that appellant sought Bradford’s service to bum said building while he was absent at Winnsboro would be a circumstance tending to show that appellant had employed Shar-ber to set said fire. That there be evidence beside that of the accomplice tending to connect the accused with the crime is all that our law requires. The jury may legally convict upon the testimony of an accomplice who details sufficient facts, if the facts be believed, and there be other testimony beside which tends to connect the accused with the commission of the offense.

Appellant’s first three bills of exception present his various objections to testimony showing that there was a fire in appellant’s place of business some weeks prior to the one directly here involved. The state witness Sharber swore that pursuant to an agreement between himself and appellant he set fire to appellant’s stock of goods about a month before the instant fire) and that as the result of this fire there was only a partial loss to the stock of goods. Sharber said that he took kerosene from his home to the store that night about 12:30 o’clock, carrying it in a tin syrup bucket; that he met. Irvin Case. Irvin Case testified that on the-night of the first fire about 12:30, as he was going home, he saw Sharber with a tin syrup bucket coming from the direction of appellant’s place of business, and that the next morning he told a Mr. James about this, and a little later told appellant. James testified that a ‘ little later he also told appellant what Case had told him. Appellant asked each of them to keep this quiet and to say-nothing about it. The sheriff of -the county testified that he investigated the first fire- and talked to appellant about the occurrence,, but that appellant at no time told him that Ferman Sharber had been seen with a tin, bucket that night. We believe the testimony relative to the first fire was admissible. The-factum probandum of the instant case was not the burning on July 19th, though that was material, but was the fact that prior ,to said fire appellant had advised, commanded,, or encouraged Ferman Sharber to set said-fire and to bum said building. Sharber- testified that before the first fire appellant promised to pay him between $400 and $500' to burn the building, and that, after the first unsuccessful attempt to do this, appellant told him he had made a poor job of it and would have to try it again, and that, carrying out his said agreement, and after-further conferences with appellant, he set fire to the property on the occasion herein, charged. Any testimony lending color to-the proposition that Sharber was acting in collusion with appellant in either fire would’ be admissible on this trial in support of the-main fact sought to be proved; i. e., that what was done by Sharber, in the instant-case was at the instigation of appellant. It could hardly be claimed that proof of the-fact that prior to the first fire appellant, had been heard to promise to pay Sharber to burn the building, the first effort at which-was not successful, would not strongly support a claim by Sharber that his agreement with appellant also induced him to make the-second attempt. That appellant had assisted Sharber to escape punishment, evade prosecution, or avoid detection as the originator of the first fire would tend to shed-light on the fact that both men were implicated therein, and also that appellant was implicated in the second fire. We think it a sound proposition that an act whose establishment by proof aliunde would make of the actor an accomplice witness,-whether as an accessory or an accomplice, would be admissible in testimony when issue was joined' in the prosecution of such actor as an accomplice, tinder the terms of our Penal Code-Applying this, we observe that Sharber-swore that he set fire to the place in question, as stated above, about a month before-the instant,fire, and gave details of his carrying in a bucket to the store the kerosene--wMeli he used In his attempt to burn the building. Case saw Sharber at 12:30 that •night with said bucket and so informed appellant. Appellant told Case to say nothing •about this to any one, and also told James, as above stated, to say nothing about it. The fact of such concealment of this material evidence affecting Sharber’s guilt of arson at that time would be of weight as reflecting appellant’s guilty connection with the matter.

By two bills of exception appellant presents his objection to testimony of Sheriff Moore and John Bradford that about sundown on the afternoon preceding the night of the fire they had a conversation with each other. No part of said conversation was testified to. The fact that following same the officer watched the building in which appellant’s business was located, and caught Sharber in the act of burning same, seems in no wise to inject error into the record claimed to be based on the admission of the statement of each of said parties that they had a conversation. We have examined the authorities cited by appellant, but find them of no application. That a sheriff talks to a defendant in jail and immediately orders the arrest of other parties might get before the jury the effect of unwarned statements of one under arrest, but we have no such case before us.

Appellant sought to show that the morning after the Are witness Bradford was approached by one Thomas, to whom, he stated that he found appellant to be as clean and honorable a man as he had ever met or had dealings with. In passing we note an affidavit of said Bradford placed in the record in which he denies that he would have stated as attributed to him in the bill of exceptions, if he had been allowed to testify. The bill of exceptions was filed April 10th, and the affidavit is dated May 21st. We cannot eonsider such affidavit. If the state does not concede that a witness whose answers are refused would have answered as stated in the bill of exceptions, such, bill of exceptions so stating should not be agreed to or approved. Referring to the subject-matter of this bill of exceptions, we observe that the impeachment of a witness cannot be based upon immaterial matters. No witness could testify that in his opinion appellant was a clean and honorable man, nor could a denial of having so stated be made the basis for impeachment. Authorities need not be cited.

Appellant placed his reputation for honesty and for being a law-abiding' citizen, and also for truth and veracity, in issue, and supported same by testimony from many witnesses who lived in Winnsboro, Wood county, where he was reared, and from which place he moved to Mt. Vernon, in Franklin county, about a year prior to this trial. Said witnesses confined their testimony to the reputation of appellant in Winnsboro and vicinity. Objection was made to the state introducing two witnesses’ who testified that in Mt. Vernon the general reputation of appellant at the time of trial for truth and veracity was bad. These witnesses admitted that they had heard nothing against appellant prior to the fire in question. It cannot be disputed that one who takes the stand as a witness in his own behalf may be attacked by proof of his bad reputation for truth and veracity at any place within a reasonable time theretofore; and he has no right to demand that the state be limited to such territory as he has seen fit to enter and from which he may have drawn witnesses to testify to his good repute in this particular. The general doctrine of the inadmissibility of testimony of bad reputation created post motam litem seems restricted in the authorities cited by appellant to such reputation as to a trait Qf character involved in the crime charged, and to rest upon good reason, but,, as argued by this court in Fossett v. State, 41 Tex. Cr. R. 401, 55 S. W. 497, when the question be the reputation of one as a witness, it is different. It might easily be true that one accused of crime be not tried for many months or even years after he has been accused, and that during this interval from discussion then first had it is found out that he is a notorious liar. We do not believe the rule could be broadly laid down that reputation for truth and veracity being found or concluded to be bad after the accusation is brought ipso facto makes such testimony inadmissible. In this case the bill of exceptions is not clear, and it is not even attempted to be shown, as was done in Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013, that the discussion which brought about appellant’s bad reputation arose only from and related to his connection with the crime charged. We have been unable to conclude that any error is shown. Graham v. State, 29 Tex. App. 31, 13 S. W. 1013; Hopperwood v. State, 39 Tex. Cr. R. 15, 44 S. W. 841; Fossett v. State, 41 Tex. Cr. R. 401, 55 S. W. 497; Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013; Caruth v. State, 77 Tex. Cr. R. 150, 177 S. W. 975.

Appellant sought to have the issue submitted to the jury as to whether John Bradford was an accomplice, and ‘complains of the refusal by the court of a special charge, but we find nothing in the record raising such issue. Appellant totally denied any connection with or participation in any burning. Sharber in no Way implicates Bradford, nor have we been able to find anything in the vigorous cross-examination. of Bradford himself, or from the statement of any other witness, which could support such conclusion.

The charge of the trial court seems to have been fair and full, and we do not think same subject to any of the exceptions directed thereat, .none of which we set out, b.ut all of which we have considered. Special charges submitting the theory that appellant would not be guilty unless the jury found that he committed the offense charged for the purpose of obtaining some benefit from insurance submit no correct theory of law applicable to the offense charged.

There was no testimony calling for the submission of the issue of accomplice testimony as related to the witnesses who were watching the building alleged to have been burned on the night of the fire in question.

There is in the record a bill of exceptions No. 21 prepared by the court and also a bill covering the same subject-matter properly certified to and prepared as a bystander’s bill. We have been unable to find any great difference in the substance of the two bills. It is made to appear that appellant’s attorney in his argument to the jury had insisted that, in return for his testifying, witness Sharber would not have to go to the penitentiary, and that in reply thereto state’s counsel used language in substance as follows:

“Now don’t you worry about Sharber. We will tend to him later. Of course, the poor devil will have to go to the penitentiary; he is not able to hire John Beavers, Lloyd Davidson, and John Beavers’ partner to defend him and put up a long fight in the courthouse for him.”

The jury could hardly have failed to know that appellant was being defended by Messrs. Beavers & Mansell and Lloyd Davidson and his firm. That Sharber was not able to employ such eminent counsel in his behalf would not seem to be a fact capable of injury to the extent that its statement to the jury by state’s counsel An his argument would justify a reversal of this case. The court refused the special charge asked by appellant telling the jury not to consider such argument. We do not deem the action of the trial court to have been of any possible injury to appellant. He was given the lowest penalty for the offense.

We have substantially set out the material parts of the testimony in discussing the various questions raised above and believe same to be sufficient. The testimony of Herman Sharber, if true and believed by the jury, fully made out the case charged against appellant in the indictment. If appellant a few days before the fire tried to get John Bradford to pad his books and burn the building for him and let it be done at a time when appellant was at Winnsboro, this would seem to sufficiently corroborate Shar-ber’s story that he was employed to burn the building at a time when appellant was in Winnsboro.

Finding no reversible error in the record, an affirmance is ordered.

On Motion for Rehearing.

MORROW, P. J.

Upon re-examination of the record in the light of appellant’s motion for rehearing and oral argument of counsel thereon, we believe that in bills No. 6 and 7 there was more merit than we comprehended at the time of writing the original opinion.

In going into it in more detail, it appears that the witness John Bradford, on behalf of the state, testified that appellant, a few days before the fire, had made a proposition to him to “pad the books and bum the building”; that the witness had declined to participate and had ceased his connection with the appellant as an employs. On cross-examination the appellant asked the witness if it was not a fact that on the day after the fire he, in conversation with one Thomas, had stated that he had found the defendant “to be as honest, as honorable, and as clean a man as he had ever had any dealings with.” The court declined to receive the answer to this question, either as original evidence or as a predicate for impeachment. The bill shows that an affirmative answer was expected. Subsequently the appellant called Thomas as a witness and offered to prove that the witness Bradford had, on the day after the fire, made to the witness the declarations mentioned. The trial court appends to his explanation of the bill the exceptions and affidavits of Bradford qualifying the statement. ■ The affidavits cannot be considered. Appellant refers to decisions of this court supporting his motion.

In the case of Norris v. State, 52 Tex. Cr. R. 166, 106 S. W. 136, it appears that the witnesses Butler and Lawrence were introduced by the appellant to impeach the reputation of O’Neal for truth and veracity. To impeach or qualify the testimony of these witnesses against the veracity of O’Neal, the state offered in evidence a written petition which had previously been signed by the witnesses Butler and Lawrence seeking to have O’Neal appointed a deputy sheriff. Objection was urged by appellant upon the ground that it gave the opinion of the witnesses of the qualifications of O’Neal. The trial court admitted the evidence, and this court approved its action and affirmed the ease on the principle that the implication in the petition that O’Neal was of such honorable character as would make him worthy of an appointment to public office was in such conflict with the testimony of the witnesses to his bad reputation for truth and veracity as rendered its admission in evidence proper.

In Sanders’ Case, 54 Tex. Cr. R. 101, 112 S. W. 68, 22 L. R. A. (N. S.) 243, the inquiry related to the death of Miss Baxter, of whose murder Sanders was charged. Her father, on cross-examination, was asked if he had not, when his daughter was found dead, entertained and expressed the opinion that she had committed suicide. The court excluded his affirmative reply, and this court, in reversing the/case, said:

“If it was a fact, as testified by Baxter, that there were various spots about her face and body indicating violence, he would have hardly been truthful in informing the neighbors, the sheriff, and officers, and physician, that he believed his daughter had committed suicide; at least, it was a matter of impeachment to show that his testimony on the final trial was at variance with his statements at the time of and just after finding the dead body.” .

Other rulings and expressions in the same case are in print.

Iñ Baker v. State, 79 Tex. Cr. R. 510, 187 S. W. 950, the witness Mrs. Laurie, wife of the deceased, having given testimony favorable to the appellant, the state was permitted to prove by her that she failed to attend the funeral of her husband. The court said:

“This was admissible as affecting the credit to be given the testimony of Mrs. Laurie. It was unnatural conduct, if she eared anything for her husband; and while, perhaps, under the facts in evidence in this case, it would have but little weight, yet it was admissible, to be given such consideration as the jury deemed proper. It was also permissible to prove by W. 0. Coleman that immediately after the killing Mrs. Laurie had said to him, ‘The killing was uncalled for.’ ”

In the instant case the declaration imputed to the witness Bradford that he “had found the appellant as honest, as honorable, and as clean a man as he had ever had any dealings with” was at variance with the testimony that he had given in behalf of the state to the effect that the appellant had sought the aid of the witness Bradford in committing the offense of arson.

The state relied to a very great degree upon the 'credibility of the witness Bradford to furnish the necessary corroboration of the accomplice witness. Bradford’s testimony was in conflict with that of the appellant, and on further consideration, in view of the authorities mentioned, the opinion is expressed that the appeEant was entitled to cross-examine the witness Bradford with reference to his declaration to the witness Thomas for the purpose of affecting his credibility, and for the purpose of laying a predicate to impeach him if he denied the statement; that he was also entitled to the use of the testimony of the witness Thomas for the purpose of impeaching the witness Bradford in the event of his denial of his declaration to Thomas. The importance of the credibility of the witness Bradford was such that the error of the court in ruling against the introduction of the impeaching testimony requires a reversal of the judgment.

The motion for rehearing is granted, the affirmance set aside, and the judgment reversed, and the cause remanded. 
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