
    WALKER v. STATE.
    (No. 3131.)
    (Court of Criminal Appeals of Texas.
    May 20, 1914.
    Rehearing Denied June 10, 1914.)
    1. Criminal Law (§ 1159) — Appeal—Review —Questions of Fact.
    A conviction could not be reversed because of insufficiency of the evidence,' where there was sufficient evidence to support it, though it was circumstantial and there was evidence to the contrary.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.]
    2. Criminal Law (§ 427) — Evidence;—Declarations of Co-Conspirator.
    Declarations of a co-conspirator during accused’s absence, in furtherance of a conspiracy that accused should burn the co-conspirator’s house for the insurance, were admissible under an instruction that they could only be considered if the conspiracy was proven beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law,^ Cent. Dig. §§ 1012-1017; Dec. Dig. § 427.]
    Appeal from District Court, Joues County; Tno. B. Thomas, Judge.
    Raul Walter was convicted of arson, and he appeals.
    Affirmed.
    S. W. Bishop, of. Gorman, Brooks & Brooks, of Anson, and Alexander, Bower & Ridgway, of Ft. Worth, for appellant C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BRENDERGAST, B. J.

Appellant was convicted for arson, in that he willfully burned the house of C. E. Thomason, which was insured against loss or damage by fire, and the jury assessed the lowest punishment. This is the same house for which said C. E. Thomason was convicted as an accomplice to arson, appealed, and affirmed by this court, reported in 160 S. W. 359.

The statement of facts is quite voluminous, containing more than 150 typewritten pages. The evidence as to appellant’s guilt was wholly circumstantial. We have carefully read and studied the evidence in this case more than once. One of appellant’s defenses was that the house was struck by lightning, and fired, and burned thereby. There was some evidence which the jury might consider as tending to show this. On the other hand, the circumstances and the testimony as a whole tend to exclude this idea, and to show with all reasonable certainty that appellant himself set fire to and burned said house. The evidence was clearly sufficient on this point to justify the jury to find the verdict it did. The state’s contention was that appellant burned the house at the instance of said Thomason, because he had it insured, and to enable him to get the insurance thereon. Appellant not only denied that he burned the house, but also denied that Th'omason had him do so. The evidence was sufficient to authorize the jury to find, as it did, that hei set fire to and burned the house at Thomason’s instance, and to enable Thomason to collect the insurance thereon. Convictions for such offenses must always be made, or in most cases, wholly by circumstantial evidence. Under the law we would, not be authorized nor justified in reversing this ease because of the claimed insufficiency of the evidence. We can see no useful purpose in detailing the testimony of the various witnesses, and of the many circumstances tending to show, and satisfactorily showing, that the evidence was sufficient to sustain the verdict.

There was evidence introduced of what said Thomason had done and said tending to show that he had appellant burn the house for his benefit. The court on this point instructed the jury that if appellant and Thomason conspired together or agreed between themselves that appellant was to burn said house, and in pursuance thereof appellant did burn it, then any act or declaration of Thomaspn, in appellant’s absence, shown by the evidence in furtherance of said common purpose and design, might be considered by the jury for what weight, if any, they saw fit to give it in arriving at their verdict; but if the evidence failed to satisfy them beyond a reasonable doubt that such agreement or conspiracy existed, then such acts or declarations of Thomason would not, in the absence of appellant, be admissible against him, and they would give no consideration whatever to, but wholly disregard, such evidence in finding their verdict. This charge was in favor of appellant, and not against him, or at any rate authorized by the evidence. The court gave a full and correct charge on circumstantial evidence, as to which there is no complaint. He required the jury to believe, beyond a reasonable doubt, every essential fact to show appellant’s guilt before they could convict him, and, in addition, told the jury that in no event could they convict him, unless they believed from the evidence beyond a reasonable doubt that he willfully set fire to and burned said house, and still, in addition, that he was presumed to be innocent until his guilt was established by legal and- competent evidence beyond a reasonable doubt, and if they had a reasonable doubt as to his guilt to find him not guilty. Again, the court specifically instructed the jury that if said house burned was set fire by lightning, or through accident, neglect, or by any other means than through the willful act of appellant, or if they had a reasonable doubt of it, to acquit him. We think appellant’s rights were protected in every way, that he has had a fair and impartial trial, and his guilt has been established by competent and legal evidence, and that the court has committed no error in the trial. The judgment will therefore he affirmed.  