Weathered v. State, 17439.

• Decision Date: 27 March 1935
• Docket Number: No. 17439.,17439.
• Citation: 81 S.W.2d 91
• Parties: WEATHERED v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W.2d 91

WEATHERED v. STATE.

No. 17439.

Court of Criminal Appeals of Texas.

March 27, 1935.

Commissioners' Decision.

Appeal from District Court, Bosque County; O. B. McPherson, Judge.

Ikey Weathered was convicted of conspiracy to commit burglary, and he appeals.

Reversed and remanded.

Otis Rogers and Joe Spurlock, both of Fort Worth, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of a conspiracy to commit burglary, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

Omitting the formal parts, the indictment reads as follows: "That Ikey Weathered, Vick Bradley, and Edgar Hammonds, on or about the 9th day of April, A. D. 1934, and anterior to the presentment of this indictment, in the county and state aforesaid, did then and there unlawfully conspire, combine, confederate and enter into a positive agreement together and between themselves unlawfully by force, to break and enter a house then and there occupied and controlled by Mrs. Richard Morris, and then and there situated in Bosque County, Texas, with the intent then and there fraudulently to take therefrom corporeal personal property therein being and then and there belonging to and being in the possession of the said Mrs. Richard Morris, from the possession of the said Mrs. Richard Morris, without the consent of the said Mrs. Richard Morris, and with the intent then and there to appropriate the same to the use and benefit of them, the said Vick Bradley, Ikey Weathered and Edgar Hammonds, and with the intent then and there to deprive the said Mrs. Richard Morris of the value of the same, against the peace and dignity of the State."

The testimony adduced upon the trial shows that on Sunday afternoon of April 8, 1934, Pearl Benson, the sheriff of Bosque county, met Vick Bradley, one Stroud, and one Leonard at the Brazos river bridge, at which time Bradley and Benson had a conversation, the nature of which is not disclosed by the record. Benson, the sheriff, had theretofore been at Cleburne to see Bradley, but the nature of his business on this occasion is not disclosed by the record. However, the record does show that on Sunday night after Benson, the sheriff, and Bradley had met at the river bridge, the sheriff and A. L. Ballew went to the town of Morgan at about 10 p. m., where they met Will Ligon, Mr. Stroud, and Mr. Leonard, who then secreted themselves at various places awaiting developments. At about 1:45 a. m. the appellant came down the street towards the post office building, passed by it, and turned the corner. Two men carrying a bundle came on behind flashing a light into the store buildings as they went, and when they reached the post office they stopped and flashed a light in the building. After this a man started across a street towards White's filling station, in which Benson, the sheriff, had stationed himself. When this man reached a point about the middle of the street, Benson fired upon him from a raised window of said filling station, mortally wounding the man, who proved to be Vick Bradley. The other two men made their escape. An investigation disclosed that a sack containing two large hammers and a pinch bar had been left in front of the post office door. The sheriff further testified for the state as follows: "I was informed that a job was to be pulled at Morgan on that Sunday night. I got this information about 9:30 P. M. by telephone from Mr. Stroud at Cleburne. I did not recognize any of the three men who I saw at the postoffice that night. I knew Vick Bradley but I did not recognize him at the time I shot him. I would not have killed him if he had stayed where he belonged. I knew Vick Bradley was not going to be involved in this job at Morgan. Bradley was not to be on the street that night. He was not to be anywhere around when they robbed the place." Will Ligon testified for the state that he met the appellant about two or three weeks before the trial, at which time the appellant said: "I am going to admit I was there. I knew I was being framed. I had no intention of going into any building down there. I knew Bradley was framing me and I went there to see how far he would go. I did not intend to go in any postoffice or any other building." That Ikey Weathered also told him that he came to Morgan at Bradey's suggestion and at his instance. Mrs. George Stanley testified for the appellant as follows: "Vick Bradley was my brother. I was at the hospital when Vick died. After Vick realized that he was...