Appellant's motion for rehearing shows care and examination of the authorities. It is again urged that on the authority of Landers v. State, 39 Tex.Crim. Rep., we should hold that reversible error was committed in the refusal of appellant's special charge No. 4, in effect, as stated in our original opinion, that if the house in question was destroyed by an explosion of gasoline or other explosive matter, and there were no enclosed walls standing covered by a roof immediately after the explosion, then the fact that the destroyed remains of the house were consumed by fire would not constitute arson as charged in this indictment, * * * regardless of who caused the explosion. We think appellant misapprehends both the Landers case, supra, and that of Mulligan v. State, 25 Texas App., 199, also cited. In the Landers case there was an explosion supposedly of dynamite, and all the witnesses save one said that what fire they saw was of splintered parts of walls and roof, none of which seemed to be connected with the standing parts of the building. The accused asked the following special charge, which was refused: "The explosion of a house by means of an explosive matter does not come within the definition of arson, unless it results in setting the house on fire." This court held that the charge should have been given, and said: "The charge requested directly instructed the jury that such burning would not be arson, but the fire must be communicated to the house, or that portion thereof remaining."
We think the charge requested in the instant case on the weight of evidence and not applicable to the facts. There was no question, as we read this record, but that the fire was set to the remains of the house by the explosion, in the instant case. Nor was there any question but that the explosion resulted in setting the house or the remains thereof on fire. Dr. Grogan, living across the street from the burned house, testified that he was waked by the explosion and looked out at once. He said: "As to whether or not the house was completely leveled down when I looked out, will state it was not, it wasn't leveled down. The frame portion of it, that is, a great deal of it, was still *Page 86 standing, and some of the rafters and maybe a portion of the roof. The house was largely destroyed by the explosion, but the whole thing was on fire all over. The house wasn't all down when I looked out." In Mulligan's case, supra, a log crib built by a tenant, for which the landlord refused to pay, was then torn down by the tenant, and after being so torn down the log pile was set on fire, and this court held it not to be the burning of a house.
Appellant bought the house, with whose burning he is charged, on October 24, 1932. The burning was charged to have taken place October 28, 1932. Conversations had by appellant with witnesses Nisley and Voltz about the time of or shortly after he bought this property, showed that he said to each of them, or in their hearing, that "He had $8000.00 insurance on the property." Nisley testified that he was sure appellant had the title to the property at the time he made this statement. The state also showed by Mr. Worrell that he attended to the business end of the transfer of the property in question to appellant, and that at the time appellant bought it there was $8000.00 insurance on the property. In such case we see no possible injury to the accused, or trespass upon his rights, to show that two policies of insurance on the property, one for $5500.00 and the other for $2500.00, were transferred to appellant before the fire. Mr. Taylor testified that he transferred the $2500.00 policy to appellant, and Miss Wood testified that she transferred the $5500.00 policy to him. Mr. Taylor said the transfer made by him was October 26th. The exact date of transfer by Miss Wood does not appear.
This is not a case in which the accused was charged by indictment with the burning of property upon which there was insurance, which is specifically made an offense by statute. Most, if not all, of the cases cited by appellant in his motion for rehearing holding it necessary to produce the policies for the purpose of showing the insurance, are cases in which the accused was on trial for burning property which was insured. In the case before us the matter of insurance was referable only to the purpose of showing motive or inducement, and it appearing from the testimony, as we have set out above, that appellant himself claimed to have $8000.00 insurance on the property, and the state having proved by Mr. Worrell that there was $8000.00 insurance on said property, we see no possible objection to the proof made by Miss Wood and Mr. Taylor of the transfers of such insurance policies to appellant. In neither bill of exceptions was the ground urged that the transfer was in writing, and that the writing would be the best evidence. *Page 87 There is not even a suggestion in the record as to who was the owner or legal holder beneficiary of said policies before their transfer. In the case of Nixon v. Malone, cited by us in our original opinion, it was held that the legal holder or owner of an insurance policy might transfer it by delivery. We do not think the bills of exception complaining of the reception of the testimony of Mr. Taylor and Miss Wood or either show any reversible error.
We have reviewed the argument of the prosecuting attorney which is discussed in the motion for rehearing, and do not think the matters dehors the record, as claimed by appellant, could be of any possible injury or such as to cause a reversal of the case. Nor do we believe error was committed in the refusal of appellant's application for continuance.
Not being able to agree with any of the contentions made, the motion for rehearing will be overruled.
Overruled.