Winn v. State

• Citation: 198 S.W. 965
• Decision Date: 28 November 1917
• Docket Number: (No. 4720.)
• Parties: WINN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

198 S.W. 965

WINN v. STATE.

(No. 4720.)

Court of Criminal Appeals of Texas.

November 28, 1917.

Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.

A. J. Winn was convicted, and appeals. Reversed and remanded.

Lee R. Stroud, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at two years' confinement in the penitentiary.

The record is without a statement of the facts. There is a bill of exceptions in the record which is so presented that we are of opinion it should be considered, though a statement of facts is not before the court. This bill is lengthy and recites that the court failed to submit the law applicable to a case of circumstantial evidence, and that appellant did not prepare nor request a special charge submitting this phase of the law, but excepted to the court's charge because it did not so charge. The bill also recites that on account of the confession of the defendant the trial court was of the opinion the law of circumstantial evidence was not applicable and should not be given. It is stated as a matter of fact, approved by the judge, that independent of the confession and but for the confession it was a case resting alone upon circumstantial evidence.

The facts, as recited by the bill, are that the owner of the shop or store, whose name is Gillis, had testified that he had possession of this house as a clothes-cleaning establishment and store, and that he gave appellant no permission to enter it; that on the close of the evening approaching the night of the date of the offense charged he locked the door of his shop or store and went home for the night. When he returned the next morning at the usual hour the shop or the store had been unlocked, and after entering the same the owner discovered that certain clothes were missing from the shop and had been taken by some one. This was without his consent, and, among other circumstances tending to show defendant's guilt, there being no eyewitness to the breaking of the house or taking of the clothes, the state, through the witness Amie Godfrey, undertook to prove and did prove certain confessions of appellant by questions and answers which are copied in the bill of exceptions. This brought in review a conversation between appellant and the witness two or three days before the alleged burglary of Gillis' shop. In this conversation Godfrey states that appellant asked him if he did not want to make some money. Godfrey asked him how this was to be done and was informed that they would get some clothes. Witness asked him where, and he said here in Forney, and witness asked him how would they get them, and appellant said they would steal them, and witness told him no he did not want to help him. A day or two prior to this conversation witness says he had a short conversation with appellant who came to him with a pair of pants and requested witness to let him leave the pants in his shoeshop. He asked appellant where he got them and was informed that he got them up at Dave's shop. The pants were stolen a day or two before that. Witness refused to let appellant leave the pants in his shoeshop for fear they would come over and search his house, and if they found the pants they would swear he was the party who committed the theft. These pants were brown. This occurred before the alleged burglary. Subsequent to this burglary appellant again approached the witness, both of them being at that time in Dallas. He repeats the conversation in Dallas about as follows:

"He came to me and asked me did I want to help him sell the clothes. I asked him, `Where is they at?' He says, `Over here.' I says, `Where did you get them?' He says, `I got them in Forney. Don't you know whose clothes I was talking to you about?' I says, `Yes.' He says, `Well they are here; don't you want to help me go and sell them?' I said, `No; I had rather help steal them than to help sell them.' Q. Did he tell you where in Forney he got them? A. He didn't say after we were in Dallas where he got them, but he told me in Forney he was going to get them out of Dave's shop. That is where he said they were located at. Q. Did he or did he not tell you that he got them at the same place he got the brown pants? A. Yes, sir; he did."

Here there was some objection and a colloquy ensued, and finally the court remarked:

"Let the witness state just what the defendant told him before the burglary about where he was going to get the clothes."

The witness answered:

"He came to me, it was two or three days before the burglary, with a pair of pants—he asked me to let him have— The Court: Leave off about those pants. I understood you to say something about some other clothes some time before the burglary. A. No, sir; nothing but the pants. He came to me and asked me did I want to make some money. I asked him how. He says, `We will get some clothes.' I says, `Where?' He says, `Here in Forney.' I says, `Where are you going to get them from?' He says, `The same place that I got the pants from;' and he told me that he got the pants from Dave Gillis' shop. The Court: That makes it admissible."

The witness further stated after the burglary he had a conversation on Sunday evening with appellant with reference to the clothes. Witness says:

"He asked me did I still want to help him make way with them; he said he had done got them; got them at the same place he got the pants."

Witness further testified he had another conversation with appellant in Dallas the following week about the clothes, and that appellant asked him if he did not want to help him sell them, and witness told him no. On cross-examination witness denied being related to appellant, but had known him a couple of years. He says they were never in business together, but would speak and go together; that they were not particular friends; just acquainted with each other; just had a speaking acquaintance. Witness says he is 21 years of age, and that appellant first came and told him he had stolen a pair of pants.

"Q. Had broken into a house and got them? A. Yes, sir. Q. Made very free to tell you that? A. Yes, sir; nobody was present when he told me that; can't remember exactly the day; it was in the shoeshop. Q. He told you where he had broken in and got the pants? A. Yes, sir; he didn't say he broke in, he said he got them there. Q. And then you refused to become a criminal with him? A. I refused to hide the pants there in my shop. I refused to go with him to get the clothes; that was after I refused to let him hide the pants there. Yes; he kept on after me. Didn't tell me exactly all. He just told me about the clothes; then afterwards told me he had got them; then afterwards tried to get me to help him sell the clothes...