J. Tullis v. The State, 41 Tex. 598

Devine, Associate Justice. Appellant was convicted of the crime of arson, and assigns as error “that the court erred in overruling defendant’s motion for a new trial.” The evidence consists of the testimony of two persons who heard the accused testify in the mayor’s court in Rock-dale, on the examination of J. B. Matson oh a charge of arson, and a letter written by defendant to the owner of the building burned. Matson was jointly indicted with defendant, but for some reason not appearing in the transcript of the case was not tried with defendant.

We cannot inquire into the admissibility of the evidence given on behalf of the State by the witnesses who were present when defendant testified in the examining court, no objection being made to the introduction of this evidence, instead of the record of the cause in the mayor’s court. The accused was indicted with Matson as a principal in the offense charged, and the evidence as set out in the statement of facts fails to sustain the charge.

The fact that he and Matson had previously agreed to go into business in keeping a restaurant; that Matson told him he intended to burn the house, and he, Matson, would then have means to enable them to have the finest saloon in Texas; that he was with Matson a short time before the house was fired, and that Matson prevailed on him to take away, for defendant’s own benefit, a saddle, two blankets, and some small articles, Matson telling him he might as well take them, as, if not taken, they would be burned; and that he went home and gave no information of Matson’s intention to burn the building.

Either or all of these facts fail to show that defendant is guilty as a principal. The letter written by defendant to the owner of the building shows only a guilty knowledge, and asserts his innocence and freedom from the crime.

His conduct after the alarm of fire had been given, and after visiting the fire, and on returning to bis lodgings finding Matson in his bed; his advice to Matson to get up an'd go to the fire, and warning him, with a view to relieve him from the danger of being suspected or arrested as the incendiary, in connection with all the evidence in the case, might render him liable as an accessory under art. 225, Criminal Code; but as a principal, under all the evidence he is not to be held liable. The judgment in this case recites that the jury received the charge of the court.

The Code of Criminal Procedure, art. 594, (Pas.Dig., art. 3059,) declares that: “After the argument of any criminal cause has been overruled, the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of the evidence, nor shall he sum up the testimony. This charge shall be given in all cases of felony, whether asked or not.” There is, however, no charge of the judge in the transcript.

We cannot believe the presiding judge omitted to give the charge required by law, and conclude the clerk omitted to copy it. We are, however, left in ignorance as regards the effect of the charge on the mind of the jury. The judge should have allowed the motion for a new trial. The judgment is reversed and the cause remanded. Reversed and remanded.