Windham v. State

• Decision Date: 10 February 1915
• Docket Number: (No. 3420.)
• Citation: 173 S.W. 661
• Parties: WINDHAM v. STATE.
• Court: Texas Court of Criminal Appeals

173 S.W. 661

WINDHAM v. STATE.

(No. 3420.)

Court of Criminal Appeals of Texas.

February 10, 1915.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

John Windham was convicted of negligent homicide, and he appeals. Affirmed.

C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted, charged with murder; when tried he was convicted of negligent homicide of the second degree, and his punishment assessed at 12 months' imprisonment in the county jail, and a fine of $1,000.

The state's evidence would have authorized a finding that appellant and deceased engaged in gambling some two or three weeks before the homicide, and that deceased won a pistol from appellant on that occasion; that a few days before deceased was killed they met at Sacul, and appellant asked what he had done with the gun, and, when deceased replied it had been torn up, appellant told him he had to get it. Deceased replied he could not get it, as he had thrown it away, when appellant said, "I am coming down there to-night after you." This was introduced to show ill will, animus, and motive. The evidence further shows that on the day of the killing appellant and Henry Ward, who had been hunting, went to the home of deceased's father and took dinner with the family; that the guns of appellant and Ward were unloaded by James Jenkins, a brother of deceased. It further appears that deceased left and went to work, and shortly thereafter appellant, Henry Ward, and James Jenkins went to a house near where deceased was at work. James Jenkins testifies that appellant reloaded his gun while on the way to this house. When they were all at this house, deceased came up to the house, and upon entering the house appellant raised his gun and said: "Stop! If you take another step I will kill you." Deceased replying, "You will have it to do," when the gun fired; both barrels being discharged. The shot entered the neck, severing the windpipe, and caused the death of the deceased.

Appellant insisted that this testimony did not raise the issue of murder, and excepted to the charge as a whole, and to each paragraph thereof on the issue of murder — not that the charge on murder, or any paragraph thereof, was erroneous, if a charge on murder was authorized, but only that such a charge was unauthorized under the testimony. We do not think the court erred, under the above state of case, in overruling such exceptions. Again, as appellant was only found guilty of negligent homicide, if the evidence did not call for such a charge, the fact that the court submitted the issue of murder would not present reversible error.

The defendant's testimony presents the theory that he and Henry Ward had been hunting, and stopped at deceased's father's for dinner; that James Jenkins did unload the guns, and he says he never reloaded his gun, and did not know it had been reloaded; that he, ...