Appellant insists that we should have held it reversible error for the court below to submit the law of principals, it being urged that thereby the trial court intimated, — or impressed the jury with his belief, — that appellant's witness Ruth Burns did or may have acted with him in the commission of the offense here charged.
Officers watching on the night of the fire, said that appellant entered the building about five minutes after midnight. The building was a two story garage, apparently on premises owned by one Wiggins, who seems to have collected the insurance on said building. Wiggins' nephews slept over the garage, but were out of town that night. Ruth Burns was Wiggins' daughter.
The officers said no other person entered said garage that night after appellant did; that something after three o'clock A. M. appellant came out of said garage. In a few minutes there was a flash in the house and successive boom, booms, and apparently flames all over the building. We have set out the facts more fully in our original opinion. Ruth Burns, for the *Page 345 defense, swore positively that the building was not set on fire. She said "I know it wasn't set on fire." She also said "Mr. Fine did not set that house on fire out there." She further testified that she was keeping company with appellant; that she went out to this garage about midnight to do some ironing, but did not iron. She admitted that she had no iron out there, but said there was one there. She claimed that shortly after she went to said garage appellant came up, and that for two or three hours the pair of them alone drank some thirteen bottles of beer. She said she drank nine bottles and appellant four; that her condition was that she was not drunk, but not too sober. She asserted that appellant left the place before she did, leaving her upstairs in the garage. According to the officers, this was but a few moments before the fire broke out. As above stated, she was the daughter of the man whose property was insured and was burned that night. It appears to us that the trial court, under these facts, was fully justified in charging on principals, and that he might have appropriately used the name of Ruth Burns in such connection.
We have examined the cases of Josef v. State, 34 Tex. Crim. 446,30 S.W. 1067, and Hazzard v. State, 111 Tex. Crim. 539,15 S.W.2d 638, cited by appellant. In Hazzard's case the trial court told the jury that Christine Gammage was an acomplice. We said in our opinion that there was no testimony supporting such proposition, and since Christine's testimony was favorable to the accused, such charge was hurtful. Substantially the same situation appears in the Josef case. We see no analogy.
The motion for rehearing will be overruled.
Overruled.