Windham v. State

• Decision Date: 18 May 1910
• Citation: 128 S.W. 1130
• Parties: WINDHAM v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 1130

WINDHAM v. STATE.

Court of Criminal Appeals of Texas.

May 18, 1910.

Appeal from District Court, Shelby County; James P. Gibson, Special Judge.

Wyatt Windham was convicted of burglary, and he appeals. Reversed and remanded.

Stephenson & Stephenson and Brewer & Hooker, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant has appealed from a conviction of burglary; his punishment being assessed at confinement in the penitentiary for three years.

Wyatt Windham, the appellant, together with Marion Gann, was indicted for burglariously in the nighttime with a gun and pistol firing into the dwelling house of one A. G. Childress with the willful intent with their malice aforethought to then and there kill and murder the said A. G. Childress. The appellant alone was placed upon trial, resulting in his conviction as stated. From the statement of facts it appears that on the 28th day of September, 1906, about 9 o'clock at night, prosecuting witness Childress was sitting in his house when a couple of parties rode by and shot into his house. However, the said Childress was not in the room at the time it was fired into. The witness rushed out of the house and discovered two parties riding off at a gallop. He went out and examined the tracks of the horses ridden by these parties and found the tracks made by one of the horses were small tracks, and the tracks of the other were large tracks shod in the fore feet. On the following morning defendant and Gann passed the house of the prosecuting witness, one of them riding a large horse and the other a small horse, and the witness went out and examined the tracks made on that morning by these horses, and they corresponded with the tracks made on the night before. It seems that there was not the best of feeling between Childress and appellant previous to this. Childress had sent appellant word that he did not want him at his house, nor to visit his daughter. He did not know whether the appellant received the message or not. However, a short time thereafter the witness gave a little social entertainment at his house, and appellant was not present, and he met appellant a few days thereafter, and appellant would not speak to him. There were some other circumstances introduced by the state as to the whereabouts of the defendant and Gann on that night. They started from church in company with two or three other parties, all of them going by Childress' house, but defendant and Gann rode on ahead, and shortly after they had gone the parties behind heard shooting in the direction in which they had gone right towards Childress' house.

On the trial of the case, over appellant's objection, the state was permitted to ask the following question of the witness Childress: "I want to ask you whether or not, since this occurrence there that night, whoever it was, if you have seen Wyatt Windham, in the nighttime about your premises and have heard him make any threats in regard to yourself? A. Yes, sir; it was somewhere near three months; it was, I believe, on Christmas night, 1906. The shooting occurred on the 28th day of September, 1906. After this shooting into my house, I heard the defendant make a statement and threats against me. It was at night between 7 and 8 o'clock, maybe 8 o'clock. Levi Riddle and Pink Riddle and my family were there. I was out between my house and front gate. The house fronts north, and there was a gate about 15 steps north, * * * and he (defendant) was in the road. Him and his father and a negro had been to San Augustine, and they had stopped at Mr. Brown's and had trouble down there. They came on up to my gate and stopped out there, and Wyatt says: `Where is old Childress? The God damn son of a bitch, let him show up tonight!" And then he says, `I am going to shoot that light out,' and his father told him not to do it. He says, `you are already in enough trouble.' The light was shining on the northeast corner of the house and could be seen plainly. When Wyatt Windham made that statement, I spoke to him, and said, `Here I am.'" This testimony was objected to by the defendant for the following reasons: Because the state has charged him (the defendant) here with burglary, having shot in the house, located the time, place, and manner of the commission of the same. Now then they seek to prove different things and different offenses; that if he made any threats against this man in the manner stated, it was a violation of law; and that this occurrence happened over three months after the shooting in the house and...