Appellant insists that our original opinion regarding the receipt of secondary evidence to prove the contents of the insurance policies is out of harmony with the holding in Cox v. State, 100 Tex.Crim. Rep., 272 S.W. 490.
At the time of the fire the insurance policies were held by a building and loan association which was carrying a loan on the property. After the fire the local agent of the insurance company was directed by the home office of the company to cancel the policies, but the building and loan association declined to surrender them. The cancellation was effected by written notice sent by registered mail. Later the insurance company sent a special agent to secure the policies and they were turned over to him by the building and loan association. The home office of the insurance company was at New Haven, Connecticut. The local agent testified: "The last time I saw the original policy was when it was turned over to the agent of the insurance company. * * * I know why they (the policies) were taken up by the special agent of the company; they had been cancelled by registered mail and the home office wanted the original policies themselves."
We are of opinion the evidence supports the conclusion that the original policies were at the home office in New Haven, Connecticut, beyond the jurisdiction of the court. No effort to secure the policies from the home office was shown. This being true, what is the law regarding the receipt of secondary evidence?
An investigation of the question leads to the discovery that the decisions of our own court are in conflict on the subject, one line being in accord with the decisions of the supreme court of this state, and the other line in conflict therewith.
Pursing the inquiry reveals that there is no uniformity in the decisions of the courts of the various states on the subject. Greenleaf on Evidence, 16th Ed., vol. 1, sec. 563e, subdivision 2, states the result of the author's investigation in the following language: "If the writing is in the control of a third person without the jurisdiction of the court, no resort to legal force is of service. But it is possible to maintain that the party desiring to use the document should at least make an effort to obtain the writing by consent of its possessor; and upon this point there is much difference of opinion. A number of courts distinctly insist that some such effort must have been made; the majority of rulings either assume or decide that no effort to obtain is necessary; * * *"
In Corpus Juris, vol. 22, sec. 1329d, page 1036, without undertaking to state the weight of authority, the conflict therein is adverted to in the following language: "In a large number of cases where primary evidence of the fact to be proved was out of the jurisdiction of the court in which *Page 23 the evidence was desired to be used, as where books, instruments, documents, or other writings constituting or containing the primary evidence were in possession of a stranger who was beyond the jurisdiction of the court and the reach of its process, courts have held secondary evidence admissible, apparently without further proof of inability to procure the original writings. Other authorities, however, assert the view that the fact that the writing is in the possession of a person beyond the jurisdiction of the court is not in itself sufficient ground for the introduction of secondary evidence; but that it must be shown that fruitless efforts have been made to obtain the writing, or the court must be satisfied that with the exercise of due diligence the writing cannot be produced. * * *"
To the same effect is Ruling Case Law, vol. 10, sec. 70, at page 913. In both Corpus Juris and Ruling Case Law the opinions upon the subject are cited on both sides of the question under the references heretofore stated.
In Wharton's Criminal Evidence, vol. 1, 10th Ed., sec. 200, page 429, he appears to state the rule to be that secondary evidence may be given as to the contents of "papers beyond the jurisdiction of the court, provided effort has been made to obtain the evidence of the party holding them, * * *" but later on in the same section he states that "parole evidence of an insurance policy is admissible where it has been shown to have been surrendered to an agent out of the court's jurisdiction before the trial," citing in support of the latter statements, State v. Watson. 63 Me. 128.
In the case of Federal Chemical Company v. Jennings,112 Miss. 513, 73 So. 567, and reported in L. R. A., 1917D, at page 529, will be found authorities collated from the courts of many states upon the subject under consideration.
Coming to the decisions of our own state it is found that the Supreme Court had adopted the rule that if the primary evidence is in the hands of a stranger to the suit beyond the jurisdiction of the court secondary evidence will be admissible in the absence of a showing that some effort had been made to procure the original. In M., K. T. Railroad of Texas v. Dilworth, 95 Tex.Crim. Rep., 67 S.W. 88, the conclusion of Judge Gaines with reference to the question is stated very tersely in this language: "In some of the courts, it is held that it must be shown that some effort has been made to procure the original, but the weight of authority seems to be that such showing is not necessary."
See also Smith v. Traders National Bank, 82 Texas Rep., 368,17 S.W. 779; McBride v. Willis and Brother, 82 Texas Rep., 141, 18 S.W. 205; Veck v. Holt, 71 Texas Rep., 715,9 S.W. 743. In Corpus Juris, vol. 22, sec. 1329d, page 1036, will be found many cases decided by courts of civil appeals of the state in which the supreme court ruling is followed. *Page 24
In our own court it will be found that the rule adopted by the supreme court has been followed in Robey v. State,73 Tex. Crim. 9, 163 S.W. 713; Arensman v. State, 79 Tex. Crim. 546,187 S.W. 471, and James v. State, 88 Tex. Crim. 656,228 S.W. 941. On the other hand, in Moore v. State, 66 Tex.Crim. Rep., 146 S.W. 183; Brown v. State,67 Tex. Crim. 543, 150 S.W. 436, and Cox v. State,100 Tex. Crim. 172, 272 S.W. 490, this court followed the other line of authorities to the effect that secondary evidence would not be received where the primary evidence was beyond the jurisdiction of the court unless proper diligence to obtain it was shown. The learned judge who wrote the opinions in the Moore and Brown cases was a member of the court when the later cases of Robey and Arensman were decided. While in the two first mentioned cases and in Cox's case, insurance policies were involved and in the two later cases, as well as in James' case, the subject of the evidence sought was other things, the principal is the same, and the cases seems irreconcilable. The writer of the opinion in Cox's case followed Moore's case, and made no reference to the holding in James' case.
The rule of admitting secondary evidence where the primary evidence is beyond the jurisdiction of the court in the hands of a stranger to the suit without the necessity of showing an effort to secure it is based on the fact that the primary evidence cannot be reached by a subpoena duces tecum or any other process of the court. In civil cases either party to the suit may take depositions of the witness out of the state, and at least request that the documents consisting of the primary evidence be attached to his answers. If the showing above referred to is not required as preliminary to receiving secondary evidence in civil cases there would seem a much stronger reason for applying the same rule in criminal cases where one party to the litigation (the state) is not permitted to take depositions. The principle is much the same as permitting the reproduction of the testimony of a witness who is beyond the jurisdiction of the court on a subsequent trial. It is largely a rule of necessity. There ought not to be a conflict in the holdings of the two courts of last resort in this state on the subject unless a good reason exists therefor on account of some procedural requirement. We have not been able to discover any such reason. After a careful examination of many authorities from our own state, as well as those from other jurisdictions, we have concluded that the more reasonable rule is the one permitting secondary evidence where the primary evidence is beyond the jurisdiction of the court, without the necessity of showing an effort to obtain it. So concluding, and in order that no further conflict may appear, the cases of Brown v. State, 67 Tex.Crim. Rep., 150 S.W. 436; Moore v. State, 66 Tex.Crim. Rep., 146 S.W. 183, and Cox v. State, 100 Tex.Crim. Rep., 272 S.W. 490, are expressly overruled on the point involved. *Page 25
If we had not reached the conclusion heretofore stated with reference to the proof of the insurance policy we would hesitate long before reversing the case upon the point urged by appellant. Under the provisions of articles 1311 and 1312 of the P. C., the owner may destroy his property by fire unless it is a house within a city, or when it is insured, or under certain other circumstances provided in the statute not pertinent here. The indictment in the present case charged that the property burned was situated in the city of Texarkana, and further alleged that said house was insured. Assuming that the evidence shows that appellant burned the house, proof either that the house was within the city of Texarkana, or that it was insured, would have made out a complete case of arson. By reason of the manner of the allegations in the indictment the court required the jury to find from the evidence beyond a reasonable doubt not only that the property was situated in the city of Texarkana, but also that it was insured. The charge was more onerous against the state than required, unless it was necessary because of the peculiar wording of the indictment. The uncontradicted evidence in the case established the fact that the property was situated in the city of Texarkana. Appellant secured the lowest penalty.
We have again reviewed the testimony in view of appellant's insistence that the evidence is not sufficient to corroborate the accomplice witness. We think it unnecessary to restate the evidence in detail, but believe the conclusions expressed in our original opinion regarding this matter to be correct.
The motion for rehearing is overruled.
Overruled.