Appellant was indicted and convicted as an accomplice in the offense of arson, and his punishment assessed at five years in the penitentiary, from which he appeals.
1. The court did, not err in overruling the motion for a continuance. The witness Hudson is not shown to have been sufficiently familiar with the Bluman stock as to have formed any definite idea as to its value. Nor does it appear that his estimate could or ought to have had any weight with the jury. If he had testified as appellant states he would, the testimony, in view of the facts proven, would have been probably untrue. Again, the witnesses who were to prove that Kirschner was suspected of burning his saloon in Austin were unimportant, in view of the facts that substantially the same testimony was introduced on the trial by the defense; and, besides, the said Kirschuer was a self-confessed, criminal, upon whose uncorroborated testimony no conviction could be had. Walker v. The State, 14 Texas Crim. App., 618; Tucker's case, 23 Texas Crim. App., 512.
2. Nor did the court err in admitting proof of the confession of George B. Jones. The appellant was indicted as an accomplice, and Paul Kirschner and George B. Jones were charged as principals, and it devolves on the State to prove the guilt of the principals. Penal Code, art. 89; Arnold's case, 9 Texas Crim. App., 438; Crook's case, 27 Texas Crim. App., 239. And no error is shown in the failure of the court to limit this evidence to the proof of the guilt of Jones, for the reason that the testimony in no way implicated Bluman. On the *Page 58 contrary, it was shown by said evidence that Jones was ignorant of the fact that Bluman was implicated in the crime, and seemed surprised to learn it. Had the court so limited the evidence, it would have been urged as error, because it excluded testimony tending to acquit appellant.
3. Appellant complains that the court erred in admitting on the trial of this case the testimony of Mrs. Kirschner, the wife of one of the principals in the crime. It appears that Kirschner was not indicted for the crime in the present indictment, which is exclusively against Bluman as an accomplice; that neither Kirschner nor Jones was upon trial. Again, it is shown that, when her testimony was offered, Kirschner, her husband, had taken the stand, and had fully and freely testified as to his own guilt. The reason of the rule that excludes the testimony of a wife when her husband is jointly tried with others is, because her testimony may injure him, and, upon sound principles of public policy, she can not be heard to testify against her husband. It was so held in the Dills' case, 1. Texas Criminal Appeals, 278. But this rule can have no application where the husband is not indicted and upon trial, and where he has confessed his guilt, and we see no error in the admission of the testimony. 1 Greenl. on Ev., 342; 1 Whart. Crim. Ev., 392.
4. In the fourth, seventh, and eleventh errors appellant complains of the error of the court in admitting evidence that Kessel forbade the removal of goods during the fire because it might affect a recovery on the insurance policies. The evidence shows that Kessel was appellant's clerk, who kept the store key, and he and appellant entered the store together, and after the trunks were taken out (claimed by Bluman to contain his wife's trousseau, but said by the insurance adjusters to contain clothing from the stock), that he was asked by Kessel whether they should save any of the stock; that he said not to do so, but that afterwards he said to save some of the best clothing; and that he, Kessel, and a negro each took an armful, and this was all that was saved — the parties carrying off the goods to the hotel. Not only that, but a witness states he took up an armful of goods, and was told by Bluman to put them down. Bluman himself only carried out a book. And in this connection it is difficult to see how the adjusters could have allowed Bluman $375 salvage on clothing, unless the three trunks claimed by him to contain his wife's trousseau and bridal presents were in reality filled with clothing out of the store, as stated by the adjusters, and the clothing must have been packed in the trunks in anticipation of fire. We think, as disclosed by the record, Kessel was acting under the instructions of appellant when he forbade the goods being taken, and, if not, it was simply what Bluman was doing himself; and, if error to admit the testimony, it was harmless. We think the charge was sufficient, and was as favorable as appellant could ask. There was *Page 59 no exception taken to any part of the charge, and we find no injury to appellant therein.
We have carefully examined the voluminous record in this case, and, despite the splendid defense interposed in his behalf, we think the evidence sustains the verdict. The evidence establishes an excessive insurance of appellant's stock, it being insured at double its value; that he was anxious to close out his business and move from Giddings; that he purchased but few goods and had allowed his stock to run down, and bought out his partner's (his brother-in-law's) interest, at $1150, a short time before the fire; that three weeks before the fire he sent down three trunks to the store, that were found filled with clothing goods after the fire; that on Sunday, before the fire that night, he spent most of, the day in the store, taking a rough statement of his stock, and left his safe unlocked, expecting a fire; that he only saved his check book and stub book, but not his book containing merchandise accounts, and thereby succeeded in having a, false credit of $1500 allowed by the adjusters; that he was in his room, dressed, when the fire broke out, after 11 o'clock, was restless that night in the hotel, and after the fire was in an unusual happy state of mind, and liberally treated the crowd at the hotel, and stated to several he was fully insured, and gave the amount; that at the trial he claimed to have destroyed the memoranda by which he affected a settlement of his insurance. Appellant's statement was contradicted by nearly every witness, in everything connected with the fire. It is also shown that the appellant knew Kirschner before he came to Giddings to do business, and, as Kirschner states, assisted him in getting a place next to himself. When we add to this the direct statement of Kirschner that Bluman, whose store joined his, offered him $500 to burn his store, and paid him a portion of it, and the statement of Emma Kirschner, his wife, who heard the final conversation between them, we think the jury was fully justified in finding the verdict. We are aware of the character of the witness Kirschner, but it does not appear that he is to be released on account of his convicting appellant. On the contrary, it appears that he is to be indicted as principal, and prosecuted for this very crime; and there is no suggestion of any ill-will between the witness and appellant, nor any motive for implicating appellant, except the truth.
There is no error in the record, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.