CLAY v. STATE | No. 14514. | Tex. Crim. App. | Judgment | Law

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Docket Number

No. 14514.

Attorney(S)

Miller Price and W. V. Dunham, all of Waco, for appellant. Willard McLaughlin, Criminal District Attorney, and Sam Dardnne, Asst. Criminal District Attorney, both of Waco, and Lloyd W. Davidson, State's Attorney, of Austin, for the State.

Judges

CHRISTIAN, JUDGE. —

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Smart Summary

Factual and Procedural Background

The appellant, Nash Clay, was convicted of arson in the District Court of McLennan County, Texas, for unlawfully and wilfully burning a house owned by R. N. Shields. Clay had rented the house from Shields for $10 per month but denied living there or involvement in the fire. Evidence showed the house was secured with nailed windows and doors, and combustible material saturated with kerosene was found inside. Witnesses placed Clay near the house shortly before the fire and saw him carrying a box into the house. The key to the house was found in Clay's possession upon arrest. The trial court sentenced Clay to two years' confinement in the penitentiary. Clay appealed, challenging various aspects of the indictment, evidence, and jury instructions. The Court of Criminal Appeals of Texas affirmed the conviction. A motion for rehearing was filed and denied.

Legal Issues Presented

Whether there was a variance between the allegation of ownership in the indictment and the proof of appellant’s tenancy in the property.
Whether the proof of ownership by certified copies of deeds, without prior notice, was proper.
Whether the trial court erred by refusing to instruct the jury to acquit if appellant did not know the house was insured.
Whether the refusal to instruct acquittal based on reasonable doubt of ownership was erroneous, given undisputed ownership.
Whether the charge on circumstantial evidence was correct.
Whether comments by the trial judge during trial constituted reversible error.

Arguments of the Parties

Appellant's Arguments

There was a variance between the indictment alleging ownership by Shields and the proof showing appellant as tenant; thus, the indictment should have alleged tenancy to avoid variance.
The state erred in introducing certified copies of deeds without proper notice and should have relied on parol evidence or other proof of ownership.
The jury should have been instructed to acquit if appellant did not know the house was insured, as insurance was relevant to the offense.
The jury should have been instructed to acquit if there was reasonable doubt as to ownership of the property.
The charge on circumstantial evidence was incorrect.
The trial judge’s remarks during cross-examination and in the presence of the jury were improper comments on the weight of evidence and prejudiced appellant’s case.

State's Arguments

The allegation that Shields owned the house was sufficient; it was unnecessary to allege appellant’s tenancy to avoid a variance.
Ownership was established by deeds and appellant’s own testimony acknowledging Shields’ ownership, making further proof unnecessary.
Insurance was not an element of arson and thus no instruction regarding knowledge of insurance was required.
Ownership was undisputed; therefore, no instruction on reasonable doubt of ownership was warranted.
The charge on circumstantial evidence conformed to established precedent and was correct.
The trial judge’s remarks did not amount to reversible error as they did not reasonably appear to injure appellant’s rights.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gutgesell v. State, 43 S.W. 1016 (Tex. Crim. App.)	Ownership allegation in arson indictment need not specify tenant status; charging ownership in fee owner is sufficient when tenant is accused.	Supported court’s rejection of appellant’s variance argument, holding that charging ownership in fee owner is adequate.
Dunlap v. State, 98 S.W. 845 (Tex. Crim. App.)	Proof of ownership by fee owner sufficient despite appellant’s tenancy; no need to aver tenancy in indictment.	Reinforced holding that tenancy need not be alleged to avoid variance.
Rogers v. State, 9 S.W. 162 (Tex. App.)	Tenant occupying house under lease cannot deny landlord’s title in arson prosecution.	Supported admission of appellant’s testimony acknowledging Shields’ ownership and rejection of appellant’s denial of landlord’s title.
Pozil v. State, 283 S.W. 846 (Tex. Crim. App.)	Proper formulation of circumstantial evidence charge in arson cases.	Validated the correctness of the court’s circumstantial evidence charge.
McCoy v. State, 2 S.W.2d 242 (Tex. Crim. App.)	Comments by judge are reversible error only if injury to accused reasonably appears.	Applied to determine that the trial judge’s remarks did not warrant reversal.

Court's Reasoning and Analysis

The court began by addressing the alleged variance between the indictment’s allegation of ownership and the proof of appellant’s tenancy. Citing precedent, it held that it is sufficient to allege ownership in the fee owner and that it is unnecessary to aver tenancy to avoid a variance. The court reasoned that under Texas law, arson is the wilful burning of a house of another, and since appellant was tenant of the owner, he could not deny the landlord’s title.

Regarding the introduction of certified copies of deeds, the court found it unnecessary to decide whether parol evidence was admissible because appellant himself admitted Shields’ ownership through his testimony. Thus, the evidence was sufficient to establish ownership.

The court rejected the appellant’s contention that the jury should have been instructed to acquit if appellant was unaware of insurance on the house, noting that insurance is not an element of the offense and was not alleged in the indictment.

Because ownership was undisputed, the court found no error in refusing an instruction to acquit on reasonable doubt of ownership.

The charge on circumstantial evidence was held to be proper, following established precedent. Even if there was any error, the court concluded it was not calculated to injure appellant’s rights, thus not warranting reversal.

The court examined the trial judge’s remarks during the trial, particularly those suggesting the accuracy of a witness’s testimony. While it acknowledged the remarks should not have been made, it found no reversible error because the comments were not clearly adverse to appellant and did not reasonably appear to prejudice the jury against him.

On rehearing, the court reaffirmed its original conclusions, finding no basis to infer that the judge’s remarks were sarcastic or harmful to appellant’s case.

Holding and Implications

The Court of Criminal Appeals of Texas affirmed the conviction of Nash Clay for arson.

The court held that allegations of ownership in the fee owner are sufficient in arson indictments even when the accused is a tenant, and that proof of ownership need not be challenged when the accused admits the landlord’s title. The court found no reversible error in the jury instructions or trial judge’s remarks. The decision directly upheld the appellant’s conviction and sentence without establishing new legal precedent beyond clarifying the sufficiency of ownership allegations in arson prosecutions involving tenants.

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NASH CLAY v. THE STATE.

1. — Arson — Variance — Ownership.

In prosecution for arson, where ownership of the property burned was alleged to be the owner of the title, appellant being a tenant, there was no variance, since it was not necessary that it be alleged that appellant was a tenant in order to avoid a variance.

2. — Same.

In prosecution for arson, where the occupant or tenant of the premises is the party charged with the burning, it is sufficient to charge the ownership of the premises to be in the person owning the fee.

3. — Arson — Evidence — Landlord and Tenant.

In prosecution for arson, where the accused occupied the house under a lease from the alleged owner he could not be heard to deny the title of his landlord.

4. — Arson — Charge — Insurance.

In prosecution for arson, refusal to instruct an acquittal if appellant did not know that the house was insured was not error, since the existence of insurance was not a specific element of the offense.

5. — Arson — Charge — Ownership.

In prosecution for arson, refusal to instruct an acquittal if there was a reasonable doubt as to the ownership, as alleged, since it was undisputed, was not error.

6. — Arson — Charge — Circumstantial Evidence.

In prosecution for arson, the charge on circumstantial evidence was correct.

CHRISTIAN, JUDGE. —

The offense is arson; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment that appellant unlawfully and wilfully burned the house of R. N. Shields. Appellant had rented the house from Shields, paying him therefor $10 per month. Immediately after the fire there was found in the house combustible material saturated with kerosene oil. The windows of the house had been securely nailed down. The front door was also fastened with nails. The back door was fastened with a lock and chain. There were a few articles of old furniture in the house. A witness for the state testified that he was in front of the house on the night of the fire a few minutes before the fire alarm was given, and that he saw appellant in close proximity to the house. Another state's witness testified that he saw appellant come out of the house approximately five minutes before the fire. He said that shortly before appellant left the house he saw him carry a box from the garage into the house. When appellant left the house, according to the testimony of the witness last referred to, the chain on the back door rattled and appellant placed some keys on his belt. The key to the house was found in appellant's possession when he was arrested.

Appellant testified that he was not in the house on the night of the fire. He denied that he had anything to do with burning it. He said that he had rented the house from Mr. Shields, but did not live there.

It was not alleged in the indictment that appellant was the tenant of R. N. Shields. The contention is made by appellant that in order for the proof that he was a tenant to correspond with the allegation of ownership it should have been averred in the indictment that he was the tenant of R. N. Shields. We are unable to agree with this contention. In Gutgesell v. State (Texas Com. App.), 43 S.W. 1016, it was alleged that the accused burned the house of Elizabeth F. Gullett. The proof showed that the house belonged to Elizabeth F. Gullett and that at the time it was burned appellant and one Ashbury were in possession of different apartments of the house. The contention was made that in as much as the proof showed that appellant was the occupant of the house and in possession thereof, there was a variance between the allegation and proof as to ownership. In holding adversely to the appellant's contention, Judge Hurt, speaking for the court, said: "As we understand it, his contention is that ownership, under our statute in arson cases, must be charged in the occupant or person in possession of the house. We do not agree with this contention. The allegation in the indictment here is that Elizabeth F. Gullett was the owner; and the proof showed that the fee of the property was in her, and that appellant was her tenant. At common law, the offense of arson is defined to be 'the malicious burning of the house of another.' Under our statute, it is 'the wilful burning of a house,' and the owner is not guilty of the crime if he burn his own house, except under certain circumstances provided by our statutes. Ordinarily, in cases of arson, the offense is committed by someone other than the occupant of the house; and in such cases it would ordinarily be sufficient to charge the ownership in the occupant. In this case, however, the occupant or tenant of the premises is the party charged with the burning; and we hold, under our statute, that in all such cases it is sufficient to charge the ownership of the premises to be in the person owning the fee."

In Dunlap v. State, 50 Tex.Crim. Rep., 98 S.W. 845, it was alleged that the house belonged to J. J. Jarvis. The appellant was the tenant of Jarvis. The contention was made that there was a variance between the allegation as to ownership and the proof. Judge Davidson, speaking for this court, ruled adversely to the appellant's contention. The holding of the court in Mulligan v. State, 25 Texas App., 199, 7 S.W. 664, 8 Am. St. Rep., 435, that it was necessary to aver in the indictment that the accused was the tenant of the owner was not necessary to a disposition of the appeal. The case was finally disposed of on the ground that the proof showed the burning of a pile of logs and not a house.

Appellant contends that error was committed by the state in making proof of ownership of the house in question. It appears from the record and the bills of exception that the state introduced in evidence certified copies of deeds to the house wherein R. N. Shields was named as grantee. It is appellant's contention that proper notice was not given before introducing these copies, it being his position that it was necessary to prove title by the introduction of deeds to the property. We deem it unnecessary to decide whether parol evidence is admissible to prove title in a case of the nature under consideration. Appellant testified that the house belonged to Mr. Shields, and that he rented from him. It was held in Rogers v. State, 26 Texas App., 404, 9 S.W. 162 (an arson case), that if the accused occupied the house under a lease from the alleged owner he could not be heard to deny the title of his landlord.

Appellant objected to the charge of the court because of its failure to embrace an instruction to the effect that he should be acquitted if he did not know that the house was insured. The existence of insurance was not a specific element of the offense. The indictment charged that he burned the house of another. It was not averred that the house was insured.

There was no issue as to the ownership of the house. It was undisputed that R. N. Shields was the owner. Hence it was unnecessary to advise the jury in the charge that appellant should be acquitted if they did not believe beyond a reasonable doubt that R. N. Shields owned the house.

It is contended that the charge on circumstantial evidence is incorrect. It is observed that the charge follows that set out in Pozil v. State, 104 Tex.Crim. Rep., 283 S.W. 846. If the charge was inaccurate we would not, under the record, feel authorized to order a reversal. Under the provisions of article 666, C. C. P., we are not authorized to reverse because of an error in the charge unless it appears that such error was calculated to injure the rights of the accused, or unless it appears from the record that the accused has not had a fair and impartial trial. The opinion is expressed that appellant could not have been injured by the error, if any, in the charge.

Bill of exception No. 14 presents the following occurrence: The district attorney asked appellant on cross-examination if appellant's witness, Hunt, was not so drunk on the night of the fire as not to know whether it was 9 or 12 o'clock. Appellant objected on the ground that the question was immaterial. Hunt had testified that he was with appellant on the night of the fire. In other words, he had testified to an alibi for appellant. In overruling the objection the trial court stated in the presence of the jury: "Inasmuch as he has testified so accurately as to what happened, I think it is admissible."

Appellant objected to the remark of the court on the ground that it was a comment on the weight of the testimony. It is clear from the bill of exception that the trial court was referring to the testimony of Hunt when he made the remark of which complaint is made. It is not clear that the remark was a comment on the weight of the evidence. It might be construed to merely embody the reason of the court for admitting the testimony. If it should be construed to be a comment on the weight of the testimony given by Hunt, we think it is apparent that the statement of the court was calculated to convey to the jury the impression that the court believed that Hunt's testimony in favor of appellant had been accurately given. In other words, there was nothing in the remark that would have impressed the jury with the view that the trial judge was of the opinion that Hunt had given false testimony. The question whether the judgment should be reversed because of improper remarks of the judge is determined not alone upon the language used or upon the fact that the comment was made. Comments of the court are cause for reversal only when it reasonably appears that injury could have resulted therefrom. McCoy v. State, 108 Tex.Crim. Rep., 2 S.W.2d 242. The remark should not have been made. However, we are unable to see how appellant could have been injured.

Bill of exception No. 19 is concerned with a statement by the court, in the presence of the jury, to the effect that the court did not believe that a witness for the state had testified to anything except what he actually saw when he was in the burned house. We find nothing in the bill of exception that indicates that the appellant objected to the remark of the court. The remark should not have been made. However, in the state of the record, the matter fails to present reversible error.

The judgment is affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.

HAWKINS, JUDGE. —

A number of grounds are enumerated in appellant's motion upon which the claims a rehearing should be granted, but the only point elaborated is regarding the matter presented in bill of exception No. 14, and discussed in our original opinion. Appellant makes a quite plausible argument upon the claim that the remark of the court complained of in said bill could have been injurious to appellant. We have not been able to agree to the conclusion reached by him as a result of the argument. We think it would be going too far for this court to infer that the jury understood that the trial judge was speaking sarcastically, and that the remark conveyed the idea to the jury that the court meant that Hunt's estimony was so accurate it was subject to suspicion. We believe the question was properly disposed of in the original opinion.

It does not appear necessary to discuss the other questions suggested in the motion. All of them were correctly decided, we think, in our former opinion, which was delivered in December, 1931. Since that time some of the same questions have had further consideration in the case of Doyle Nash v. State, 121 Tex. Crim. 13, 51 S.W.2d 689, decided originally in April, 1932, and motion for rehearing acted on this day.

Appellant's motion for rehearing is overruled.

Overruled.