157 S.W.2d 643 | Tex. Crim. App. | 1942
The offense is arson. The punishment assessed is confinement in the State penitentiary for a term of two years.
The record discloses that on or about the 17th day of February, 1940, appellant purchased from J. M. Thomas a dwelling-house located at 509 West 5th Street in the City of Tyler, Texas. The consideration therefor was $1,800.00, payable as follows: Cash, $100.00, and for the remaining $1,700.00 appellant made, executed and delivered his note payable to J. W. Thomas in installments of $15.00 on the first day of each month, beginning with the first day of April, 1940. Appellant moved into the house with his family. He insured it against fire in the sum of $750.00, which was payable to J. W. Thomas, the lien-holder. He also took out some insurance on his household and kitchen furniture. On the night of June 13th a fire was discovered in the house. The fire department was notified and the firemen went immediately to the scene of the fire. They found the doors locked and windows securely fastened down. After breaking into the house, they found an electric smoothing-iron in a cabinet under the kitchen sink, the cord' of which was plugged into the wall and connected with the electric current. A great number of loose matches were found lying around and upon the smoothing-iron. Some rags carrying the odor of kerosene oil were also found. The odor of kerosene oil was discovered on an upholstered chair with eight or ten books of matches “stuck around” on the back of the seat. A five-gallon can with
Appellant did not testify or offer any affirmative defense.
Bill of Exception No. 1 reflects the following occurrence: After Eddie Waller had testified at the instance of the State that he was Captain of the Tyler Fire Department, that he went to the scene of the fire on the night in question and made an investigation for the purpose of discovering the origin of the fire, etc., he was asked on cross-examination by appellant if he knew Miles Smith and knew that he was a representative of the National Board of Fire Underwriters, to which the witness replied that he knew Miles Smith; that he understood that Smith was a representative of the National Board of Fire Underwriters but he did not know that Smith was in Tyler and had made an investigation of this case. Thereupon, appellant propounded to him the further question: “You don’t recall whether he was over here investigating this fire and prompted these arson charges to be filed?” The State objected to the question as being improper and not admissible as it did not shed any light on any issue in the case. The court sustained the objection and the- appellant then and there excepted. It is apparent from the bill that the witness did not personally know that Smith was a representative of the National Board of Fire Underwriters. The only reasonable inference to be drawn from his testimony is that he had heard it. Neither did he know that Smith made any investigation of the fire and prompted the arson charge to be filed. Consequently there was no error in the court’s ruling. It is clear to us that if the witness had given such testimony, it would have been hearsay.
By Bill of Exception No. 2 appellant complains of the testimony given by Clyde Bentley to the effect that after the fire had been extinguished he made a photograph of the kitchen, including the cabinet under the kitchen sink, the ice box, ironing board, floor and walls, which photograph showed the electric smoothing-iron sitting in the cabinet, the electric cord of which was plugged into the wall of the kitchen, thus connecting the iron with the electric current and showed a great number of matches lying upon and around the smoothing-iron. Appellant objected to the introduction of this photograph upon the ground that the witness had no search warrant which authorized him to enter the building and make photographs thereof. The record shows that Bentley arrived at the scene of the fire after the firemen had entered the building and extinguished the fire. The firemen had a legal right to enter the appellant’s home while it was on fire and to extinguish it. Public policy not only authorized but required them to do so. Hence they were lawfully upon the premises and whatever incriminating facts or circumstances were discovered by them were admissible in evidence. The Constitution only prohibits an unreasonable search of a citizen’s home, but the facts of the present case do not show an unreasonable search of the accused’s premises. Mr. Bentley, who had entered the building after the firemen had extinguished the fire, saw the conditions existing in the house and made a photograph thereof which truly reflected the actual conditions which existed in the kitchen and more accurately conveyed to the jury the conditions therein than the witnesses could do by word of mouth. However, two firemen testified without objection on the part of appellant to the same facts as were disclosed by the photograph, showing the condition of the kitchen of the house. In our opinion, the witnesses had a right to state what they discovered in the building, and for the same reason Mr. Bentley could demonstrate by photograph the existing facts which he discovered. See 30 Tex. Jur. p. 136, sec. 66, on the .subject of Municipal Corporations.
By Bill of Exception No. 3 appellant complains of the testimony given by Billy Pinkerton, a member of the Police Department of the City of Tyler, to the effect that the fire occurred at 12:20 o’clock midnight; that when he reached the scene of the fire he went around to the garage and storage room on the premises; that he had been to and from the burned build
In 18 Tex. Jur., p. 405, sec. 280, the rule is stated as follows:
“The use of photographs in evidence is to- ‘identify persons, places and things; to exhibit particular localities or places, where it is important that the jury should have a clear idea thereof, and the situation may thus be better indicated than by testimony of. witnesses; or where they will conduce to a better or clearer understanding of such testimony.’ * * * In short, photographs are a species of demonstrative evidence.”
Bill of Exception No. 4 relates to what Henry L. Ginn did when he reached the scene of the fire and what he found in the storage room in connection with the garage. Appellant objected to this testimony upon the ground that he (Ginn) had no search warrant. The.court qualified this bill and in his qualification states that Mr. Ginn, Chief of the Fire Department, had gone upon the premises while the house was burning and while the firemen were endeavoring to extinguish the fire; that he discovered the back doors were latched; that the firemen were still upon the premises with their equipment at the time the oil can was discovered which was introduced in evidence. We are of the opinion that what we have said in disposing of Bills Nos. 2 and 3 also disposes of Bill No. 4.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.