The offense is conspiracy to commit arson; the punishment, confinement in the penitentiary for two years.
It was charged in the indictment, in substance, that on or about October 8, 1931, in the County of Wilbarger and State of Texas, C. B. Boydston, Dick Crabtree and appellant unlawfully and wilfully conspired, combined and confederated and entered into a positive agreement with each other to wilfully and unlawfully set fire to and burn the house of Clyde Hamm there situate. *Page 154
Appellant owned a house in the town of Vernon. It was agreed between Boydston, Crabtree and appellant that the house would be deeded to Boydston and that thereafter Crabtree would burn said house in order that the insurance might be collected. In making the pretended conveyance to Boydston it was appellant's purpose to have the title in the name of another in order that he (appellant) might not be suspected of committing the offense. Pursuant to the agreement between the parties, appellant conveyed the property to Boydston. Thereafter, on the 8th of October, 1931, Crabtree burned the house. The insurance was collected and divided between Crabtree and appellant, Crabtree receiving approximately $75. At the time the house was burned a house belonging to Clyde Hamm, which was within 20 feet of the house appellant had deeded to Boydston, was completely destroyed by fire communicated from Boydston's house.
There was no proof that appellant at any time entered into conspiracy with Boydston and Crabtree to burn Clyde Hamm's house. Bearing in mind that appellant is not charged in the present case with the offense of accomplice to arson, but with the substantive offense of conspiracy to burn the house of Boydston, we consider whether in the absence of proof of an agreement to burn Hamm's house, this conviction can be sustained on proof of the fact that the burning of the house last mentioned resulted from the burning of Boydston's house.
Article 1622, Penal Code, reads as follows: "A conspiracy is an agreement entered into between two or more persons to commit a felony."
We quote article 1623, Penal Code: "The offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have so unlawfully combined."
Article 1624, Penal Code, reads as follows: "Before a conviction can be had for the offense of conspiracy, it must appear that there was a positive agreement to commit a felony. It will not be sufficient that such agreement was contemplated by the parties charged."
The substantive offense of conspiracy to commit a felony being complete when the conspiracy is entered into, it is a complete offense for which the parties can be prosecuted and punished. Rice v. State, 51 S.W.2d 364; King v. State,216 S.W. 1091. It was essential to a conviction herein that the State establish that appellant and his co-conspirators entered into a positive agreement to burn the house of Clyde Hamm, as *Page 155 charged in the indictment. We quote from 12 Corpus Juris, 627, as follows: "The purpose and object of a conspiracy must be proved as laid in the indictment."
In support of the text, among others, the following authorities are cited: Rabens v. United States, 146 Fed. Rep., 978; State v. Loser, 104, N.W., 337. Manifestly, proof that the parties entered into a positive agreement to burn the house of Boydston does not support the allegation in the indictment that a positive agreement was entered into to burn the house of Clyde Hamm.
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.