Ex parte Gilstrap , 1883 Tex. Crim. App. LEXIS 172 ( 1883 )

Hurt, Judge,

Appellant was indicted for the murder of E. Chiffiet at the March term, A. D. 1883, of the District Court of Holán county. He sued out the writ of habeas corpus, which was heard by the Hon. T. B. Wheeler, in chambers, on the twentieth day of April, 1883, and bail was refused, the appellant being remanded to the custody of the sheriff. From this order of the judge below this appeal is prosecuted.

Two grounds were relied on for bail before his honor below, and are here insisted upon:

1. That applicant’s health would be endangered by imprisonment. (Art. 155, Code Grim. Procedure.)

2. That the proof is not evident.

The first ground is not supported by the evidence.

Second ground: Is it evident from the proof that applicant is guilty of murder in the first degree?

We are of the opinion that it is not. We think that it would be improper to enter upon an analysis of the facts and circumstances by which the proof is sought to be made evident. As this cause will have to be tried by a jury 'upon its merits, we deem it necessary for us to notice the question presented in the bill of exceptions.

James Oriner was the most important witness in the case. By him most of the criminative facts were established. The applicant proposed to prove by one H. 0. Bawcom that immediately after the killing of Chifflet, he, Bawcom, heard Oriner say that he himself had shot Chifflet, and that Chifflet had shot at him, Criner, three times. Counsel for applicant also propounded a question to the following effect: “Did you hear the witness Criner, a day or two before the killing of Guilliot and Chifflet, say that he would make his son Alfred whip Guilliot?” Upon objection of the prosecuting attorney this evidence was excluded upon the ground that no predicate had been laid for the impeachment of the witness, and upon the further ground that the question and answer were not pertinent to the cause.

Was a predicate necessary? By no means. Criner being a witness, applicant had the right, without predicate, to introduce any fact or circumstance tending to connect him with the crime, which would be admissible if Criner himself had been on trial.

The reason is evident. A conviction cannot be had upon the testimony of an accomplice unless corroborated. Hence the fact, viz., accomplice or not, is of the highest importance. If shown to be an accomplice, the attitude of the case is radically changed. Stamp upon the witness this character, and, whether corroborated or not, the jury might not be inclined to believe him. Again: the necessity of corroboration arises; which would not be required if not an accomplice, and the strength or cogency of the corroborating facts become the subject of investigation, requiring the closest scrutiny. Each of these, and perhaps other questions, are made important matters of investigation, when a witness is shown to be an accomplice. We are of the opinion that the evidence offered was of the first importance under the facts of this case, and should be admitted.

Because the proof is not evident that applicant is guilty of murder of the first degree, the order remanding him to the custody of the sheriff is reversed. It is therefore ordered and adjudged by the court that the applicant A. J. Gilstrap be admitted to bail in the sum of five thousand dollars, with good and sufficient sureties, and that this judgment of the court be certified to the sheriff of Holán county, the officer having custody of said applicant, who is authorized and empowered to receive a bail bond for that amount, properly executed and conditioned as the law requires; which said bail bond, when so executed and approved by said sheriff, shall be filed by him in the District Court of said county.

Reversed and bail awarded.

Opinion delivered May 26, 1883.