Ward v. State

HABPEB, Judge.

Appellant was prosecuted under an indictment charging him with going into and near a private residence and rudely displaying a deadly weapon—a gun—in a manner calculated to disturb the inhabitants of said private residence.

B. H. McCabe was a tenant of appellant. Oh the.29th of last December McCabe loaded up his household goods preparatory to moving oft the premises of appellant, and after he had loaded up all his household goods, and his wife and children had gotten in the wagon, appellant drove up and said to McCabe, “You have taken my double shovel off, and I want you to bring it back,” when McCabe admitted he had taken it off, but claimed it was his, and said, “I turn the place over to you.” While McCabe was attempting to drive his cow out, McHabb, who was assisting McCabe in moving, and appellant had some words, and appellant got.his Winchester out of his wagon, and Mrs. McCabe testifies: “He (appellant) held his gun in front of him in both hands (indicating and showing how the gun was held) and she and her children became frightened and jumped from off the wagon and ran.” Appellant objected to Mrs. McCabe being permitted to testify that she became frightened and ran, on many grounds, but none of them we think are tenable. He was being prosecuted for going near to a private residence and disturbing the inhabitants, and if his acts and conduct were such as to frighten the wife, she would undoubtedly be permitted to.so testify. It is true that whether his acts and conduct on the occasion were such as to disturb the inhabitants would be a question for the jury, but -if a witness was frightened by his conduct, it is a fact she would be permitted to testify to. However, the court withdrew this testimony from the jury, and instructed them not to1 consider it.

The only other question presented by the record is that at the time appellant displayed the Winchester the house was not the private residence of McCabe, but that he had surrendered possession to appellant. This was raised by excepting to the charge of the court, which- instructed the jury: “You are further charged that as to whether the house in question was or was not the private residence of R. N. McCabe and family at the"' time of the disturbance, if any, is a question of fact to be proven like any other fact, and if you have a reasonable doubt as to whether it was the private residence of said McCabe, you will acquit the defendant.” Appellant desired the court to find as a fact that the place was not the residence of McCabe at the time, and instruct the jury, to acquit. We think, within contemplation of this statute, this house was the private residence of McCabe at the time, and the jury did not err in so finding, and the court submitted the matter as favorably as appellant had a right to expect under the evidence, by instructing the jury it was a question of fact upon which they must pass. It is true McCabe had loaded all his household articles preparatory to moving off the premises, but he had not got off the premises before the trouble arose, and before appellant displayed his rifle in a way to frighten McCabe’s wife and children.

The judgment is affirmed.

Affirmed.