Lowe v. State, 28283

• Decision Date: 06 June 1956
• Docket Number: No. 28283,28283
• Citation: 294 S.W.2d 394,163 Tex.Crim. 578
• Parties: E. R. LOWE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 394

294 S.W.2d 394

163 Tex.Crim. 578

E. R. LOWE, Appellant, v. The STATE of Texas, Appellee.

No. 28283.

Court of Criminal Appeals of Texas.

June 6, 1956.

Rehearing Denied Oct. 10, 1956.

McDonald & Anderson, by C. C. McDonald, Wichita Falls, for appellant.

Royce Adkins, Dist. Atty., Haskell, Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for burglary; the punishment, two years in the penitentiary.

Durene Boone who resided on a farm 2 1/2 miles from the town of Haskell with her husband, Nord Boone, and their daughter, Jo Nord Boone, age 11, was called as a witness by the state. She testified that about 3 P.M., June 17, 1955, she heard the sound of a car horn, went to the back door, found the screen door closed and locked and the wooden door with three glass panels open, and saw her father, the appellant, get out of the car with a shotgun about twelve steps away and start running toward the house. She told her father she didn't want to talk with him and not to come in the house, and he said, 'God damn you, you have done your last thing; I'm going to get you this time', then she slammed the wooden door closed and locked it. She further testified that she ran to the bedroom and with her daughter went into the bathroom, locked the door and got in the bath tub, and while in the bathroom she heard glass breaking and someone walking on the kitchen, den, and hall floors, and the appellant repeating over and over, 'You sorry son-of-a-bitch, you've done your last thing; I'm going to get you this time.' She plead with appellant through the door to do what he liked with her, but not to hurt Jo, during which time she put Jo out of the window and told her to go to the barn, heard the gun discharged in the house, and then she left through the bathroom window and ran to the barn and on to a neighbor's home where she telephoned her husband and the officers. Appellant soon left her house and she returned as her husband and the officers arrived. Upon her return she found the back screen door pulled loose from the frame with two holes in it and the lower glass panel of the wooden door broken and broken glass on the kitchen floor; and the gun had been discharged into the vent of the attic fan in the hall in front of the bathroom door. She also testified that her father had not been in her house nor had she been in his since 1953.

Nord Boone, who was not at home at the time of the commission of the offense here alleged, testified in substance as did his wife as to the condition of the doors, the broken glass on the floor, and the vent. He further testified that he found a 12 gauge shotgun shell with shot size No. 2 in the flower bed by the back porch, and that he did not have any No. 2, 12 gauge shotgun shells on his place. He testified also that the appellant did not have his consent to open the doors and enter his house.

Deputy Sheriff Alvis testified that the appellant had freshly congealed blood on the back of his hand when taken into custody.

Sheriff Pennington's testimony corroborated that of Durene Boone as to the condition of the doors and the glass on the floor at the Boone home. He further testified that he found some shot from a shotgun shell on the floor in the hall; that he went with the appellant to his house where he handed him a shotgun loaded with three 12 gauge shotgun shells containing No. 2 shot; and that the markings on these three shells were the same as those on the shell found at the Boone residence.

B. T. Gordon testified that the appellant while on a trip to Marlin in May 1954, and when referring to Durene Boone, said 'He just told me and the Sheriff at that time that he was going to kill those two.'

Appellant while testifying in his own behalf stated that he and his wife were separated and had made a property settlement, and that on the occasion in question he went to Durene Boone's home in response to a telephone call from his daughter asking him to come and assist her in writing a letter to her mother about the insurance on a building belonging to her which had burned. When he arrived he saw Durene standing in the door with a shotgun drawn on him; he dodged to one side, told her to drop the gun, and tried to reach her so he could take the gun from her hand, and as she moved back he heard the glass in the door break; and she dropped the gun in the hall as she ran into the bathroom. He further testified that he picked up the gun, learned that it was his gun which was an automatic shotgun, and while unloading it with the barrel pointed up it was accidently discharged, the shot striking the vent in the ceiling. He stated that he made no attempt to break into the bathroom. He then returned to his home in Haskell and had gone across the street to his son's home to tell him what happened at Durene's when he was arrested.

In the state's rebuttal Durene Boone testified that she did not request her father to come to her home and assist her in writing a letter to her mother, and she also denied that her father's shotgun was in her house before he came.

The testimony shows that the relationship between the appellant and Durene Boone had not been pleasant and friendly for about two years prior to the date of the alleged offense.

Appellant moved to quash the indictment on the ground that the offense attempted to be charged was not set forth in plain and intelligible words in that it did not allege that the appellant broke and entered said house with the intent then and there to make an assault upon Durene Boone with the intent then and there with malice aforethought to kill Durene Boone by shooting her with a gun because the assault is an essential element of the offense intended to be committed and must be alleged.

The instant indictment charged that '* * * in the daytime * * * did, then and there, by force, threats and fraud, break...