Gibson v. State , 23 Tex. Ct. App. 414 ( 1887 )

Hurt, Judge.

At the last Galveston term of this court, the judgment in this case was affirmed without written opinion. By order of the presiding judge, a motion for rehearing was filed here, and has been ably argued by the counsel for the motion. The grounds of the motion will be considered in the order of their presentation.

Upon the examination of the witnesses for the State, it was elicited from a number of them that the homicide occurred in a bawdy house, and that appellant was its proprietress. Appellant objected to this testimony, and assigns as error the overruling of the objection.

We have not the slightest doubt of the admissibility of these facts. The acts and declarations of the participants could not be clearly understood in the absence of these facts. The presence of the deceased and others, the purchase of the beer, and the indecent language used, are presented in the clearest light when viewed with reference to the fact that they transpired at a bawdy house of which appellant was proprietress.

Over the objection of the appellant, the State proved by several witnesses that deceased, when shot, wore dark clothing, and that he did not have on a light colored or white overcoat. In passing upon the competency of this evidence, it is of the highest necessity to look to the offense in this case. The appellant introduced one Breeding, by whom she proved facts upon which she rested her defense, viz.: First, that Cliff Cook killed in self defense; and, second, manslaughter in Cook, because of insulting words to appellant, his wife.

On the other hand, the theory of the State evidently was that Breeding was not present at the homicide, and that the facts deposed to by him were sheer fabrications. In support of many other cogent circumstances tending to establish this theory, the State, before Breeding was introduced, as well as after his examination, with the proper predicate, overwhelmingly established that deceased, when shot, was dressed in dark clothes, and that he was not wearing a light colored or white overcoat. On the trial of Cliff Cook, as on this trial, Breeding swore in the most positive manner that the man he saw on the walk had on a light colored overcoat; that he was the man who had the pistol; that he was as positive that he (the man he saw on the w'alk) called Lilly Gibson a “whore,” and that she told him to drop that gun, as he was that he had on a light colored overcoat.

The liberty, yes, even the life, of the appellant, rested upon, was enchained in, the testimony of this man Breeding; for eliminating his testimony from the record, there is neither justification, excuse nor mitigation for this homicide. This being the state of the case, the State had the right, and freely used it, to anticipate the witness Breeding, and by its evidence in chief, and that subsequent to the predicate in rebuttal, to completely crush this witness, and by this method give the death blow to-each and every defense, excuse or matter in mitigation of the homicide. Breeding swore that the man on the sidewalk had on a white or light colored overcoat; that of this he was positive. The State'says that Breeding was not present, and introduces a number of facts to support this proposition, one of which is that deceased did not have on such an overcoat. If Breeding testified falsely about the overcoat, or if, in fact, the man he saw did have on a light coat, he may have also testified falsely about being present, or it may have been another transaction. This, however, under the facts, could not have been the case.

Again, as above stated, the theory of the State was that Breeding’s testimony was fabricated; that in fact he was not present, and did not see deceased until after he was moved to another place, and as conclusive of this his positive oath to the color of the overcoat is relied upon. Does it tend to support the proposition of the State? Most evidently, and, under the peculiar circumstances of this case, we think very cogently.

When the State rested, the defendant moved the court to require the district attorney to place D. H. Breeding upon the stand, because he had testified in the Cook case that he was an eye witness to the shooting, and to examine him as to the facts. This was resisted by the State and overruled by the court. Neither the Hunnicut (20 Texas Ct. App., 626) nor the Phillips (22 Texas Ct. App., 139) cases contain the doctrine that in all cases and under all circumstances must the State place upon the stand each and every witness to the transaction. By reference to those cases it will be found that the rule stated, by a fair construction, would not require of the court the placing of all eye witnesses to the transaction on the_stand, under such circumstances as surrotmd this case. (Vide on this subject Ex parte Smith, decided at the last Galveston term.) We think there was no error in overruling the motion.

The State drew from State’s witnesses the declarations of the appellant, made immediately before and after the shooting, in substance as follows: Before the shooting defendant cursed deceased; called Júm a “bastard son of a bitch,” a “d—d son of a bitch,” etc. She went to Cook’s room and told him to “come out with his pistol.” When Cook came out and was on the gallery, she said to him, “fire! fire!” four or five times. . After the shooting: “I shot him! He shot me. I shot the d—d son of a bitch! I shot the bastard son of a bitch! I shot him in self defense.” It will be borne in mind that these remarks were made immediately before and after the shooting, in fact were made dum fervet opus, as it were.

In making her defense, the appellant proposed to prove by George Cook substantially the following: That on January 1, 1886, in the defendant’s parlor, witness asked defendant to state to him how the shooting occurred. That among other things she said that prior to the shooting she and deceased fell into a wordy altercation, in which harsh language was used by both parties; that among other things he said to her: “I have the best pistol, you d—d old whore, and can do you up!” That he had it in his hand then making demonstrations with it; and she replied to him: “You are a coward, and have not the nerve to shoot; fire! fire!” That the word “fire” was used to deceased and not to Cliff Cook; that about this instant the firing commenced, etc. To this evidence the State objected, and the objection was sustained.

Now, it is contended by counsel for appellant that, under the rule laid down in Green’s case, 17 Texas Court of Appeals, 395, and followed in the Harrison case, 20 Texas Court of Appeals, 387, these declarations to George Cook were admissible; that those cases are strictly in point, and, for this court to sustain the ruling of the court below in this case, the Green and Harrison cases must be overruled. The Green case alone discusses this question, and we are very certain that there is no analogy between that and this case. But let us look to the statute. The latter part of Article 751 of the Code of Criminal Procedure is relied upon to support the admissibility of these declarations. That clause reads: “And when a detailed act, declaration, conversation or writing is given in evidence, any other act declaration or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.” It is not pretended by appellant that the proposed statements were res gestae, but that they are admissible by virtue of the above statute. In the Green case there was no witness of the homicide. The State relied upon the voluntary confession of the accused made to a justice of the peace on the evening of the homicide. By reference to the confession introduced by the State, it will be seen that it is strictly a declaration detailing the particulars of the homicide, though not so full and complete as to be beyond a more perfect explanation, in order that it might be fully understood.

Opinion delivered June 1, 1887.

In the case in hand the State did not introduce in evidence a detailed declaration, a detailed conversation, or acts of the defendant. It confined the witnesses to the remarks and acts of the participants as they were made and occurred at the very time of the transaction, constituting strictly res gestae; the transaction was simply introduced as it actually occurred,—as it spoke through the acts and words of the parties engaged. If the position of the appellant be correct, in all cases in which the State introduces in evidence a remark or act of the accused, though made and done at the very time the offense is committed, the accused would have the right to introduce any and all statements made by him at any subsequent time. To such a doctrine this court can not consent.

Breeding swore that the deceased called the appellant a “d—d old whore.” Counsel for appellant requested the court to charge the jury the law of manslaughter arising from these insulting words to his wife; the court refused, and exception was taken. To this we reply that there is no evidence showing that Cook heard or was informed of the insult.

We have very carefully considered the matters urged for a rehearing, but have found nothing to induce us to alter our views of the case since its first examination. The motion for rehearing is overruled.

Motion overruled.