Stewart v. State

• Decision Date: 20 November 1907
• Citation: 105 S.W. 809
• Parties: STEWART v. STATE.
• Court: Texas Court of Criminal Appeals

105 S.W. 809

STEWART v. STATE.

Court of Criminal Appeals of Texas.

November 20, 1907.

Appeal from District Court, Camp County; P. A. Turner, Judge.

Jim Dick Stewart was convicted of burglary, and he appeals. Reversed and remanded.

Sam D. Snodgrass, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This is one of those very close cases on the facts. It is extremely doubtful if the evidence narrated in the record before this court is sufficient to justify appellant of the conviction for burglary charged against him. The main witness for the state is the alleged owner, whose father also accompanied him to the house alleged to have been burglarized, and the evidence disclosed from those witnesses that some one had entered the house where some turkeys had been placed. A great number of these turkeys had been purchased by the owner and placed in this house for marketable purposes. When the witness opened the door, the party who was in the house, in running out, ran against the door and knocked the witness down into a ditch and ran away. The witness did not identify the party, and stated that he did not know who it was— whether a negro or white man. Appellant is a negro. By the time the witness had recovered himself to his feet, the supposed burglar had gotten some 75 yards away, running, and witness gave chase. The party being chased ran to the depot, and there was lost. The witness went to the depot, looked in through a window, and saw a negro occupying one of the seats in the negroes' waiting room, either asleep, or apparently asleep. He did not enter the depot, but went away. There were other windows to the depot, on the opposite side from that looked through by the witness. He identified the sleeping negro as appellant. He secured the services of an officer within a half hour or such time, and went to appellant's house and found him in bed. He was aroused by the officer and placed under arrest. The officer's name was Guest. Mr. Guest, when he went in, said: "Jim, what were you doing up yonder in that barn among those turkeys?" He said: "Mr. Guest, what turkeys?" He said: "Mr. Mahaffey's turkeys." Appellant said: "Where are they at?" "In that old barn up there" (and he called the name of the barn). Appellant replied. "You are talking to the wrong nigger," and said, "I haven't been up there nowhere since 6 o'clock. I came home at 6 o'clock, and haven't been there since then. Q. Is that all he said—`I came home at 6 o'clock, and haven't been down there since then'? A. Yes, sir." He asked him, then, what he was doing at the Cotton Belt depot; and he said he had not been there since 6 o'clock. He repeated that he had not been away since that hour. There were no turkeys taken. The witness for the state did not go into the depot, but states that he called to the negro sleeping in the depot twice; but there was no response from the negro, or any evidence that he heard him.

Attached to the motion for new trial are the affidavits of certain parties which set out newly discovered testimony. The law has been complied with in so far as diligence and those matters are concerned with reference to that phase of the case, showing diligence and other matters necessary to lay a predicate in regard to the discovery of newly discovered testimony. The question is whether this testimony is of sufficient importance and materiality to have required the granting of the motion for a new trial on this ground. Two of the witnesses, Pitts and Baird, stated in their affidavit that they met the alleged owner on the night of the supposed burglary, and that he was excited, and told affiants that he had just run a negro out of his turkey house, and that he had chased him to the waiting room of the Cotton Belt depot; that the parties then asked Mahaffey who the negro was, and said Mahaffey replied: "As I opened the back door of the house a party ran out, knocking me into a ditch. I got up as quick as I could, and pursued him in the direction of the Cotton Belt depot. When I was about 75 yards from the depot, the party went into the colored waiting room. I could tell it was a negro, but I did not know him; and I went on up to the waiting room and saw a negro sitting in the waiting room of the depot, but I did not know who he was. The negro that I saw sitting in the waiting room was a stranger to me." Shortly after this conversation occurred, one W. C. Sturkey came down to the barn where said turkeys were housed, and affiants, together with Sturkey and the said Mahaffey, went to the colored waiting room...