Cook v. State

• Decision Date: 23 June 1886
• Citation: 3 S.W. 749
• Parties: COOK <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 749

COOKv.

STATE.¹

Court of Appeals of Texas.

June 23, 1886.

Appeal from district court, Bexar county.

The indictment in this case charged the appellant with the murder of William M. Russell, in Bexar county, Texas, on the twentieth day of December,

1885. His trial resulted in his conviction of murder in the first degree, and his punishment was assessed at a life term in the penitentiary.

On this trial the state proved that the deceased and one Jones went to the house of prostitution in San Antonio, Texas, kept by one Lilly Gibson, the wife of the defendant. The deceased ordered a bottle of beer, which was drunk by deceased, Jones, and two of the inmates. Deceased paid for the bottle of beer, the price being one dollar. He then ordered, and the same parties drank, another bottle of beer. For that bottle he paid the waiter 45 cents. A dispute then arose between Lilly Gibson and deceased about the balance due on the beer. Jones paid 50 cents, and he and deceased started off, Jones some distance in advance. When deceased reached a point midway between the door of the house and the yard-gate, Lilly Gibson called to defendant, who was then in the room adjoining the gallery on which she was standing, to bring his pistol, and kill the ____. Defendant stepped to the gallery with his pistol, when Lilly Gibson called to him to shoot the deceased. Defendant fired three shots at deceased as he passed out of the gate, one of which took effect, producing death next day. This was the substance of the testimony of the witnesses for the state, and of the dying declarations of the deceased. The defense relied upon evidence introduced to impeach the state witnesses, and the testimony of one witness, who was discredited, that deceased held a pistol presented towards Lilly Gibson when the defendant fired. The predicate laid by the state to qualify the dying declarations was that deceased was rational when he made them, protested that his death was inevitable, and made the statements voluntarily, and not in response to questions asked.

M. G. Anderson, A. J. Evans, and Walton, Hill & Walton, for appellant.

Lilly Gibson was proved to be the lawful wife of the defendant, and was of course incompetent to testify against him. It was therefore error to admit proof of her declarations just before the shooting.

The predicate laid was not sufficient to admit the dying declarations of the deceased.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

The appellant was convicted in the court below of murder in the first degree, with a life-term penalty assessed in the penitentiary. The party killed was one William M. Russell, and the record shows that the fatal shooting took place on the night of December 21, 1885, after midnight, between 12 and 1 o'clock. The shooting took place at a brothel kept by one Lilly Gibson, or just after the deceased had started to leave, and was leaving, said house of prostitution. Lilly Gibson, the keeper of the bagnio, was the wife of this appellant, and appellant had rooms and lived at and slept in said house. Appellant was in his room in said house when an altercation occurred between the deceased and Lilly Gibson about the payment by deceased for a bottle of beer. Deceased was intoxicated, and his friend attempted to settle the altercation between him and the woman Gibson, and had succeeded so far as to get him started away from the house to his own place of abode, and they had gotten outside of the gate of the premises, when the woman Gibson called to her husband, the defendant, "to get his pistol and bring it there;" and, as he emerged upon the porch where she was standing, she told him several times "to fire." He immediately fired three shots, one of which took effect, and produced the death of the deceased. It is claimed that, during the wordy altercation between the parties above mentioned, deceased had used insulting language towards the woman Gibson, the wife of appellant, and that he had called her "a damned old whore."

This is a brief, succinct statement of the material facts shown by the record. There are no independent bills of exception in the record, but several were reserved during the trial, and are shown in the statement of facts, to the admission of the testimony of the witnesses, as follows: (1) Objection was made by defendant to testimony as to acts and declarations of Lilly Gibson, upon the ground that she was the wife of defendant, and therefore her acts and declarations could not be used against him. (2) Objection was made by defendant to admitted testimony of the reputation of the house kept by Lilly Gibson as a house of prostitution, and that the inmates thereof were prostitutes. (3) Objection was made to the admission of the dying declarations of the deceased, Russell.

With regard to the declarations of the wife, made during the progress of the difficulty, just preceding and subsequent to the shooting of Russell, they were admissible as verbal acts, and were clearly parts of the res gestæ, and consequently did not come within the rule announced in article 735, Code Crim. Proc., which prohibits a husband and wife from testifying against each other in a criminal prosecution. Again, the evidence, as developed in this case, shows that the husband and wife acted together in the commission of the offense, and are both principals, and the rule is uniform that the declarations of one of the parties principal, made at the time, during the progress and in furtherance of the common design, are admissible in evidence, and binding upon the other co-conspirators. Cox v. State, 8 Tex. App. 256; Loggins v. State, Id. 434.

Mr. Wharton, in his work on Evidence, (section 252,) says: "It is, in any view, clear that declarations which are the immediate accompaniments of an act, are admissible as part of the res gestæ." Again, in section 263, he says that "the wife's declarations, forming a part of the res gestæ, are admissible against the husband." This doctrine is maintained in civil cases at common law. Johnson v. Sherwin, 3 Gray, 374; Walton v. Green, 1 Car. & P. 621; Gilchrist v. Bale, 8 Watts, 355; Aveson v. Lord Kinnair, 6 East, 188; Thompson v. Trevanion, 1 Skin. 402. At common law, the rule which in civil cases excluded the husband and wife from testifying against each other was the same as that which is announced by our statutes with regard to criminal cases. There is no law of this state which governs or regulates the admission of declarations of the wife affecting the husband, when they constitute a part of the res gestæ; and, there being no specific rules prescribed by statute, other rules of the Code relegate us to the common law for the rules which are to govern. Code Crim. Proc. arts. 27, 725.

We shall therefore adhere to the common-law rule as expressed in the authorities above cited, and hold the declarations of the wife admissible against the husband as a part of the res gestæ; for it is indispensable to a correct understanding of every transaction that every act attending it, verbal as well as physical, by whomsoever it may be committed, be placed before the court for its enlightenment. This rule as to res gestæ overrides all other rules known to the law governing the admissibility of testimony. The court below, then, did not err in so admitting the declarations of Lilly Gibson as complained about in this case.

We are also of opinion that the objection of appellant to the admission of the dying declarations of the...