DAVIDSON, Presiding Judge.
On change of venue this case was tried in Floyd County, the offense having been alleged to have been committed in Briscoe County, where the indictment was returned. This is a case of circumstantial evidence.
The substance of the evidence for the State is, that a barn was burned at night near the midnight hour and in the same neighborhood another barn and some hay stacks were burned. Appellant was arrested for this burning. That near the burning were some horse and human foot tracks. These horse tracks were traced from the scene of the burning to appellant’s residence. Two human foot tracks were discovered near the burned houses, one track about twelve inches long with some peculiarities about one of the tracks. These peculiarities were evidenced by certain character of tacks in one of the heels of the shoe or' boot, and a broken or worn place in the sole of the shoe or boot supposed to have been worn by one of the parties to the burning. Appellant owned and wore a boot that the witnesses said corresponded with the track that was found. Between the point of burning and appellant’s residence was evidence where a horse had fallen with the rider, or the rider at least had sat down upon the ground. The impress showed, as the witnesses state, that the party who made the impression on the ground wore corduroy pants. Appellant owned a suit of corduroy and was wearing it the night of the burning, or is supposed to have been wearing it on that occasion. One of the horses whose trail was followed made a track that the witnesses say indicated what they called a "narrow heel.” This-track was traced to appellant’s residence. Another track was traced to-appellant’s residence- and thence north a mile or a mile and a half to Mr. Taylor’s residence, where an animal was found supposed to have made this track. This animal showed the next day to have been ridden. The record does not show what became of the third animal. An investigation close and searching was made by people of the neighborhood and the sheriff of the county to locate the animal that made the track termed the horse with the narrow heel but the result was a failure. It is also in evidence that one of the horses was shod in front. The horse that made the track with the narrow heel was shod all around, and the third horse was bare-footed. Appellant’s premises, pasture and the countryside were searched, and closely so, to locate the animal that made the track with the narrow heel, but the animal was not found. Appellant owned no such animal, and what became of it is not disclosed, and in fact the testimony shows that they never traced the track further than a certain point near appellant’s house; it did not go inside of his premises, and they failed to find where it left the premises. The barefooted track seems to have disappeared; in fact, the record gives no particular facts or evidence in regard to that after the tracks reached
that neighborhood. The witness Lyles, who was in charge of the premises where the first burning occurred and the alleged owner of the burned premises, was in charge of it for the Swift Company. He was one of the trailing parties and had filed an affidavit charging Olen Ward, brother of defendant, with cattle theft some time prior to this transaction. This engendered ill-will on the part of appellant, and he is shown to have used some pretty vigorous language about it. The State, failing in the case against Olen Ward, dismissed the prosecution. Lyles is shown to have had trouble with other parties called by the witnesses in a general way “wood-choppers.” These parties had been cutting . wood from the ranch of which Lyles had charge. A man named Bay seems also to have had animosity towards Lyles; he had been charged with a violation of the law by Lyles,—cattle theft. Bay had been living with and working for Taylor, the owner of one of the animals supposed to have been ridden the night of the burning. Taylor-testified that Bay was at his house on the day preceding the night of the burning. These wood-choppers and Bay and other parties were shown to have animosity towards Lyles, and lived in the same neighborhood and beyond appellant’s residence from where the burning occurred. It may be fairly stated also that corduroy was not an uncommon suit of clothes in that country. Between the point of. burning and appellant’s residence was found an old wornout overcoat.- The State undertook to show that this overcoat belonged to appellant, and one witness testified that he saw appellant on Sunday in possession of a similar coat as appellant was returning home from Clarendon. Clarendon was about forty miles above his residence. It is denied by all the-testimony except this witness that appellant had any such overcoat, or that he had an overcoat. These witnesses testify that appellant did not own an overcoat. The State was never able at any point to locate the animal that made the track with the “narrow heel.” It was shown positively not to have been at appellant’s home, in his pasture or about the place anywhere, and the tracks of the animal did not enter his premises. This is practically the State’s ease.
Appellant, as before stated, proved by quite a number of witnesses that he did not own an overcoat of any sort and had never owned the coat in question. It is also in evidence, and admittedly so, that appellant left his home and went to Clarendon for the purpose of carrying a lady and her children to take the train to return to the husband and father of the lady and children. He left home Thursday evening, went a few miles to where the lady and her children were visiting. Briday he started to Clarendon, reaching there Saturday. After seeing the lady-off on the train he remained in Clarendon Saturday night and returned home Sunday. Two of the State witnesses met him between Clarendon ■and his home, driving a wagon and a couple of horses. He is traced practically all the way. When within eight- or ten miles of his home he stopped in the evening, fed his horses, and about dusk hitched up his team and took his brother-in-law and his sister, his brother-in-law’s
wife, and their children home with him that night, reaching there something like 9 o’clock that night. This seems to be an uncontroverted fact except as to the time, which was somewhat guess work, but he drove this eight or ten miles after dusk, and his team was tired and the road rough, and they estimate it was about two or two and a half hours after leaving his brother-in-law’s before reaching home. The State witness Taylor, owner of one of the horses supposed to have been ridden that night, shows that appellant’s wagon passed his house something like half after 8 or 9 o’clock. This was about a mile and a half or such matter from appellant’s residence. The brother-in-law and sister of appellant, and his wife and himself all testify that upon reaching home it was something like 9 o’clock. That his wife, who had retired, got up and cooked supper, and after sitting around a while, about 11 o’clock they retired for the night, all of them sleeping in the same room in different beds. The distance from appellant’s house to the point of burning was eight or ten miles. The burning is supposed to have occurred about 11 o’clock that night.
1.
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DAVIDSON, Presiding Judge.
On change of venue this case was tried in Floyd County, the offense having been alleged to have been committed in Briscoe County, where the indictment was returned. This is a case of circumstantial evidence.
The substance of the evidence for the State is, that a barn was burned at night near the midnight hour and in the same neighborhood another barn and some hay stacks were burned. Appellant was arrested for this burning. That near the burning were some horse and human foot tracks. These horse tracks were traced from the scene of the burning to appellant’s residence. Two human foot tracks were discovered near the burned houses, one track about twelve inches long with some peculiarities about one of the tracks. These peculiarities were evidenced by certain character of tacks in one of the heels of the shoe or' boot, and a broken or worn place in the sole of the shoe or boot supposed to have been worn by one of the parties to the burning. Appellant owned and wore a boot that the witnesses said corresponded with the track that was found. Between the point of burning and appellant’s residence was evidence where a horse had fallen with the rider, or the rider at least had sat down upon the ground. The impress showed, as the witnesses state, that the party who made the impression on the ground wore corduroy pants. Appellant owned a suit of corduroy and was wearing it the night of the burning, or is supposed to have been wearing it on that occasion. One of the horses whose trail was followed made a track that the witnesses say indicated what they called a "narrow heel.” This-track was traced to appellant’s residence. Another track was traced to-appellant’s residence- and thence north a mile or a mile and a half to Mr. Taylor’s residence, where an animal was found supposed to have made this track. This animal showed the next day to have been ridden. The record does not show what became of the third animal. An investigation close and searching was made by people of the neighborhood and the sheriff of the county to locate the animal that made the track termed the horse with the narrow heel but the result was a failure. It is also in evidence that one of the horses was shod in front. The horse that made the track with the narrow heel was shod all around, and the third horse was bare-footed. Appellant’s premises, pasture and the countryside were searched, and closely so, to locate the animal that made the track with the narrow heel, but the animal was not found. Appellant owned no such animal, and what became of it is not disclosed, and in fact the testimony shows that they never traced the track further than a certain point near appellant’s house; it did not go inside of his premises, and they failed to find where it left the premises. The barefooted track seems to have disappeared; in fact, the record gives no particular facts or evidence in regard to that after the tracks reached
that neighborhood. The witness Lyles, who was in charge of the premises where the first burning occurred and the alleged owner of the burned premises, was in charge of it for the Swift Company. He was one of the trailing parties and had filed an affidavit charging Olen Ward, brother of defendant, with cattle theft some time prior to this transaction. This engendered ill-will on the part of appellant, and he is shown to have used some pretty vigorous language about it. The State, failing in the case against Olen Ward, dismissed the prosecution. Lyles is shown to have had trouble with other parties called by the witnesses in a general way “wood-choppers.” These parties had been cutting . wood from the ranch of which Lyles had charge. A man named Bay seems also to have had animosity towards Lyles; he had been charged with a violation of the law by Lyles,—cattle theft. Bay had been living with and working for Taylor, the owner of one of the animals supposed to have been ridden the night of the burning. Taylor-testified that Bay was at his house on the day preceding the night of the burning. These wood-choppers and Bay and other parties were shown to have animosity towards Lyles, and lived in the same neighborhood and beyond appellant’s residence from where the burning occurred. It may be fairly stated also that corduroy was not an uncommon suit of clothes in that country. Between the point of. burning and appellant’s residence was found an old wornout overcoat.- The State undertook to show that this overcoat belonged to appellant, and one witness testified that he saw appellant on Sunday in possession of a similar coat as appellant was returning home from Clarendon. Clarendon was about forty miles above his residence. It is denied by all the-testimony except this witness that appellant had any such overcoat, or that he had an overcoat. These witnesses testify that appellant did not own an overcoat. The State was never able at any point to locate the animal that made the track with the “narrow heel.” It was shown positively not to have been at appellant’s home, in his pasture or about the place anywhere, and the tracks of the animal did not enter his premises. This is practically the State’s ease.
Appellant, as before stated, proved by quite a number of witnesses that he did not own an overcoat of any sort and had never owned the coat in question. It is also in evidence, and admittedly so, that appellant left his home and went to Clarendon for the purpose of carrying a lady and her children to take the train to return to the husband and father of the lady and children. He left home Thursday evening, went a few miles to where the lady and her children were visiting. Briday he started to Clarendon, reaching there Saturday. After seeing the lady-off on the train he remained in Clarendon Saturday night and returned home Sunday. Two of the State witnesses met him between Clarendon ■and his home, driving a wagon and a couple of horses. He is traced practically all the way. When within eight- or ten miles of his home he stopped in the evening, fed his horses, and about dusk hitched up his team and took his brother-in-law and his sister, his brother-in-law’s
wife, and their children home with him that night, reaching there something like 9 o’clock that night. This seems to be an uncontroverted fact except as to the time, which was somewhat guess work, but he drove this eight or ten miles after dusk, and his team was tired and the road rough, and they estimate it was about two or two and a half hours after leaving his brother-in-law’s before reaching home. The State witness Taylor, owner of one of the horses supposed to have been ridden that night, shows that appellant’s wagon passed his house something like half after 8 or 9 o’clock. This was about a mile and a half or such matter from appellant’s residence. The brother-in-law and sister of appellant, and his wife and himself all testify that upon reaching home it was something like 9 o’clock. That his wife, who had retired, got up and cooked supper, and after sitting around a while, about 11 o’clock they retired for the night, all of them sleeping in the same room in different beds. The distance from appellant’s house to the point of burning was eight or ten miles. The burning is supposed to have occurred about 11 o’clock that night.
1. A bill of exceptions reserved by appellant réeites that while Warren Bell was testifying for the State, on cross-examination, defendant offered to prove by the witness and propounded questions to elicit testimony as follows: That just prior to the 6th day of February, 1910, the date of the fire, that defendant is alleged to have started, that he, the witness, who was working for Swift
&
Co. on what is known as Shoe Bar ranch, as such employe, had a good deal of trouble on said ranch with wood haulers, several of them would go on said ranch and take therefrom, without consent, wood; and that said witness had told said wood haulers to get off the ranch, and made them get off; and further, that a short time prior to said fire, in the direction in which the horse tracks led in going from the fire, there had been a fire on the ranch which burned the grass, and also that he, the said witness, had received threats that the company for whom he worked would be burned out from the wood haulers. That said witness would have testified to said facts as set out. That the defendant offered said testimony for the purpose of showing that others in that neighborhood had ill-will against the witness and said company, and that others than the defendant had a motive to set fire to the house in which the witness lived and which was set on fire the night that Alek Lyles’ house was burned. The testimony sho-wed that on the night of February 6, 1910, a house belonging to Swift & Co., and in which the witness lived, and was sleeping, was set on fire and burned, being the same night that Alek Lyles’ house was burned, and that horse tracks led from Swift & Co.’s house to Alek Lyles’ house and vice versa; and that horse tracks led from Alek Lyles’ house to or near defendant’s house.
The State objected to the admission of this evidence because same was immaterial and irrelevant to any issue in the case, and threw no light on the matter under investigation, and could not he available to the defendant in his defense, there being no other testimony offered attempt
ing to connect any wood haulers with this burning of Lyles’ house. These are the objections urged by the State and sustained by the court. Of course, the grounds of objection are not treated as matters of fact for either side. The purposes for which this testimony was offered under the circumstances of this case were valid. This evidence was clearly admissible in view of what has been stated before. It is a rule too well established now to be gainsaid or questioned that a person accused of crime may show motive, reasons and opportunity on the part of others to commit the crime other than the accused. This rule would seem to obtain with considerable more force in cases of circumstantial evidence, and the rule, or reasons for the rule, would seem to be intensified where the facts and circumstances are of a weak and inconclusive nature. This question was thoroughly adjudicated in the case of Dubose v. State, 10 Texas Crim. App., 230; Gilder v. State, 61 Texas Crim. Rep., 16, 133 S. W. Rep., 883; Ex parte Gilstrap, 14 Texas Crim. App., 240; Chancey v. State, 50 Texas Crim. Rep., 85, 96 S. W. Rep., 12; 12 Cyc., 734; Bram v. United States, 18 S. C. R., 183, 168 U. S., 532; 42 L. Ed., 568; Brown v. State, 25 So., 182; Blocker v. State, 55 Texas Crim. Rep., 30; Hart v. State, 15 Texas Crim. App., 202; Wheeler v. State, 56 Texas Crim. Rep., 547; Kirby v. State, 49 Texas Crim. Rep, 517; Harrison v. State, 47 Texas Crim. Rep., 393. The evidence should have been admitted.
In this connection there was some evidence introduced to show these matters. The court erred in not submitting the issue to the jury that if somebody else than the defendant did the act of burning and appellant was' in no way criminally responsible he should be acquitted. We think this charge should have been given.
The ill-will and motive omthe part of others can be shown and the threats of parties other than the defendant and their ill-will and threats to do the injured party harm in any way is admissible, and this, of course, must be in connection with the idea that the parties are or may have been in such position to the alleged offense as they could have been or might have been the guilty parties. The position and opportunities and reasons are as strong on part of others as the defendant.
2. It is contended that the evidence is not sufficient to justify the verdict against appellant. The writer does-not hesitate to say he believes this contention is sound under the statement of facts. The State’s evidence, it occurs to the writer, shows that appellant could not and did not burn the house. If the State’s testimony is to be relied upon, it would show that appellant was at home at such time that it would have been practically impossible for him to have burned the house, and not only so but there is no evidence in this record to show that he could have been acting in concert with parties other than his brother-in-law who spent the night with him. The State did not undertake to connect with defendant a third party. Hor was it undertaken to connect anybody, so far as appellant was concerned, with the riding of the barefooted horse, or that he got the horse belonging to Mr. Taylor that was
shod in front. The horse with the narrow heel was not traced to appellant’s possession. There was no attempt to show that Ray, who had been living with Taylor and who had not been at Mr. Taylor’s since, was connected with appellant on that night. In fact, there is nothing to indicate that he was at appellant’s or in that neighborhood that night other than the fact that he had been at Mr. Taylor’s preceding the burning at night. Mr. Taylor testifies he does not know who rode his animal. The State’s evidence excludes the idea that the horse that made the narrow-heeled track was at appellant’s, and does not show what became of the horse, or who rode the horse. The State’s evidence also excludes the idea that any of appellant’s horses were ridden on the night of the burning. This would also intensify the reason for introducing evidence to the effect that the other parties may have committed the act of burning. Without committing my brethren to the proposition that the evidence is insufficient, the writer unhesitatingly states he does not believe the State has a case against appellant.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
PREHDERGAST; Judge, not sitting.