Gibson v. State
| Decision Date | 01 June 1887 |
| Citation | 5 S.W. 314 |
| Parties | GIBSON v. STATE. |
| Court | Texas Court of Appeals |
This is the companion case to that of Cliff Cook, which will be found reported in 22 Tex. App. 511, 3 S. W. Rep. 749. This conviction was in the second degree for the murder of William M. Russell, in Bexar county, Texas, on the twentieth day of December, 1885, and the penalty assessed against the appellant was a term of five years in the penitentiary. The evidence in the two cases being in large part the same, the statement which follows contains only such additional or different facts as were not proved in the Cook Case. In addition to his testimony on the Cook trial, the witness Bennett testified that when he reached the station-house with the deceased the latter declared frequently that the defendant on this trial did not shoot him, but that she called upon Cook to shoot him, and that Cook did so. This witness was corroborated by Zeigler to the extent that deceased declared that the defendant did not shoot him, but was the cause of his being shot. The defendant's witness Breeding located himself at the house of the defendant at the time of the shooting, and testified that he heard three shots fired, two of which he saw fired by Cliff Cook. He did not know who fired the other shot. Just before the shots were fired he saw the deceased standing on the sidewalk, with a pistol in his hand flourishing it about. He also heard the deceased, who was wearing a light-colored overcoat, curse the defendant and call her a d____d old whore. He also heard the deceased say to defendant that his pistol was the best, and that he could do her up. The defendant replied that he was too great a coward to fire that pistol. The firing began immediately. Witness had then just come out of the house, having been inside between 20 and 30 minutes. The witness denied that he went to the station-house after the shooting, and when called upon to identify deceased replied that he had never seen him before. Witness admitted that on the trial of Cook he testified that the deceased, at the time of the shooting, had on a light-colored overcoat, and adhered to that statement. Several witnesses, both for the state and the defense, failed to locate the witness Breeding at the house of the defendant at the time of the shooting, and those who testified that they saw him at the house during the night, stated that he came there an hour or an hour and a half before the shooting, remained some 20 minutes and left, and did not return until after the shooting. A number of state's witnesses declared that when they reached the Gibson house, and found the deceased wounded, they observed particularly that he had on a black coat, — the same coat which was introduced in evidence. One witness for the state testified that when Breeding came to the station-house after the shooting, and looked at deceased, he asked him if he had ever seen the deceased before, and Breeding replied instantly and positively that he had not.
Walton, Hill & Walton, M. G. Anderson, and Jay Minter, for appellant. Asst. Atty. Gen. Davidson, for the State.
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 walk) 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...
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Heidingsfelder v. State, 17172.
...the part of appellant concerning the alleged robbery. Under the circumstances, we think the holding of this court in Gibson v. State, 23 Tex. App. 414, 5 S. W. 314, 316, which was approved in Lawler v. State, 110 Tex. Cr. R. 460, 9 S.W.(2d) 259, militates against the conclusion that article......
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Lawler v. State
...for the introduction of self-serving declarations. The statement made by appellant to Mrs. Motley was full and complete. Gibson v. State, 23 Tex. App. 414, 5 S. W. 314. Where the previous acts or declarations which are sought to be explained are full and complete, proof of prior or later ac......
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Bosley v. State
...in evidence, and the irregularity as to the time of its introduction presents no such error of which he can complain. Gibson v. State, 23 Tex. App. 422, 5 S. W. 314. Where evidence is introduced to impeach a witness by proof of contradictory statements made to him by others, evidence is com......
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Royens v. State
...the Hunnicutt Case, and it will be seen that no general rule is attempted to be stated." 23 Tex. App. 238, 5 S. W. 224. In Gibson's Case, 23 Tex. App. 423, 5 S. W. 314, the same court again announced the same doctrine in the following language: "Neither the Hunnicutt (20 Tex. App. 632) nor ......