Wilson v. State

• Decision Date: 26 June 1912
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1114

158 S.W. 1114

WILSON v. STATE.

Court of Criminal Appeals of Texas.

June 26, 1912.

Rehearing Denied June 27, 1913.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Harry Wilson was convicted of burglary, and he appeals. Affirmed.

J. W. Taylor, of Waco, and J. P. Word, of Meridian, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted for burglarizing by force, threats, and fraud a house, the barn, of John Ivy, on July 28, 1911, with the intent to steal. He was convicted, and given the lowest penalty, two years in the penitentiary.

The evidence to show appellant's guilt was circumstantial. The court gave a correct charge on circumstantial evidence. Appellant contends that the evidence is insufficient to sustain the verdict. We have carefully read and studied the evidence, and in our opinion it is amply sufficient to sustain the verdict.

It is unnecessary to give a detailed or extensive statement of the evidence. We will merely give what the evidence tends to show, and what the jury from all the evidence was justified in finding. Appellant lived with his father, Bill Wilson, on his farm. The night the burglary and theft occurred Bill Wilson was at Waco, and was not at home. The farms of John Ivy and Bill Wilson adjoined. It was about, or a little less than, a mile and a half between their residences, by the public road. John Ivy's barn was situated at his residence and near thereto; the barn of Bill Wilson was situated near his residence. John Ivy had a brother Bill, who was entirely blind, and almost entirely deaf. He could not hear an ordinary conversation, and could not hear out of one ear at all. In order to make him hear out of the other ear it was necessary to get very close to him and talk loud. Bill Ivy lived with John, and had for many years. John Ivy had some shelled sacks of oats in his barn. A short time before the burglary and theft, John Ivy and his wife had gone to Mineral Wells, and were there on the night of the burglary. He left in charge of his place and property Lee Greason. When he left to go to Mineral Wells John Ivy fastened the outside window to his barn, where his oats were, by a button from the outside, a staple, and wired up on the inside, and in addition a plank, nailed across the window on the inside, the plank being nailed on either side of the window and through the window, thereby apparently securely fastening this window. A brother of appellant, who lived some quarter of a mile from Bill Wilson, had an old wagon and a team of small mules. These mules had very small feet. This wagon and team were at Bill Wilson's the night of the burglary. On the night of the burglary appellant's cousin Dan Davis stayed all night at Bill Wilson's. Dan was sick, and soon after supper, early in the night, went to bed. He did not go to sleep for some half hour after he went to bed. Soon after supper appellant told Dan Davis to look after himself; that he was going up to his said brother Pink's. Ag. Standifer, another cousin of appellant, was also at Bill Wilson's that night. When appellant told Dan Davis to take care of himself he—and the evidence justified the jury to believe—and Ag. Standifer then left Bill Wilson's place. They did not go to Pink's, where appellant had announced to Dan Davis he was going. Bill Ivy was well known to appellant, and he had known him for several years. Bill Ivy stayed about the negroes, Bill Wilson, and others a good deal. John Ivy had notified them repeatedly not to permit him to stay about them. On the night of the burglary, Greason went to bed about 9 o'clock. Bill Ivy was not there then, and had not been there prior to that time that night. Between 9 and 10 o'clock, after Greason had gone to bed, he heard some noise out about John Ivy's barn. It sounded to him like knocking and prizing. Soon afterwards he heard a wagon drive away from John Ivy's barn. He did not then go outside to see what, if anything, was the matter. About 30 minutes later he did get up from the bed and went out to the barn. He looked about the barn, but saw no one and no wagon. In going out to the barn, however, he met Bill Ivy about a well in the lot; had no conversation then with Bill Ivy. After finding no one about the barn, he went back and went to bed, not knowing that anything particularly had occurred until the next morning between daylight and sunup. Bill Ivy also went to the house and went to bed, not in the bed or room with Greason. The next morning a tenant living on John Ivy's farm who came to Ivy's lot to feed his team, found that the outside door of John Ivy's barn had been bursted open, and he saw oats were missing out of the barn. He notified Greason. Greason then went out and made an examination. They found the outside window of John Ivy's barn bursted open, the plank nailed up had been torn off, the wire or staples broken or pulled out, and they then found loose scattered oats on the ground under this window, and from there tracked a wagon, drawn by animals that had very small feet, to Bill Wilson's barn. The said old wagon was then in Bill Wilson's lot near his barn. They found loose shelled oats in this old wagon and on the ground at Bill Wilson's barn. In his barn they then found at least eight sacks of oats. Greason then inquired of Dan Davis where Bill Wilson was. The appellant was then in Bill Wilson's house, and heard what occurred between Greason and Davis, but did not make his appearance. Upon being informed that Bill Wilson was in Waco, and had been the day and night before, Greason left. Later in the day he and others went back to Bill Wilson's barn. They then found no oats in sacks, but found loose shelled oats piled up in Bill Wilson's bin in his barn. Digging down in this pile they found two different colored kind of oats. That on top corresponded with the color and grade of oats raised by John Ivy that year and which were taken out of his barn the night before. Those underneath were a brighter, lighter grade of oats, and readily distinguishable from those on top, and the oats underneath were also identified and shown to be of the same grade and color of oats that Bill Wilson had raised and thrashed that year. From all this, it will be readily seen that the evidence unerringly pointed to the appellant as one of the persons, at least, who committed the burglary and theft. At any rate, it was amply and clearly sufficient to justify the jury to convict appellant as the party, or one of the parties.

It seems that P. A. or Ag. Standifer, as well as appellant, was indicted under a separate indictment for the same burglary. When the cause was called for trial said Standifer and appellant made a motion for severance, with the view of having Standifer tried first, so that appellant could use his testimony on his trial. This motion was not sworn to by either party, and it did not state that the testimony of Standifer was material for appellant. The motion was correctly refused by the court on both of these grounds, as stated by the judge in allowing the bill excepting to the overruling of said motion. Article 729, C. C. P.; Shaw v. State, 39 Tex. Cr. R. 161, 45 S. W. 599.

While John Ivy was testifying for the state he was asked whether or not he made any examination of the oats in the...