Gibson v. State
| Decision Date | 05 June 1857 |
| Citation | 9 Ind. 250 |
| Parties | Gibson v. The State |
| Court | Indiana Supreme Court |
From the Morgan Circuit Court.
The judgment is reversed. Cause remanded for further proceedings.
Jonathan W. Gordon and D. McClure, for appellant.
(1) Mr Gordon, for the appellant, cited authorities to the first and third points in this case, as follows:
1. The Queen's Case, as cited in 1 Greenl. Ev. sec. 462, note 1; Roscoe's Cr. Ev. p. 181, and cases cited; Id. 182, note 2; Thomas v. David, 7 C. & P. 250; De Sally v. Morgan, 2 Esp. 489; Phil. Ev. 938, 8th ed.
3. Rosencrants v. State, 6 Ind. 407; Spence v State, 8 Blackf. 281; Taylor v. State, 4 Ind 540; Newcastle, etc., R. R. Co. v. Chambers, 6 Ind. 346; Romaine v. State, 7 Ind. 63; Nagle v Hornberger, 6 Ind. 69.
Indictment against William and Robert Gibson, for the murder of Robert Mann. The prisoners joined in the plea of not guilty. Robert Gibson was acquitted. The verdict as to William Gibson was, guilty of manslaughter, and imprisonment in the penitentiary twenty-one years. The proper steps were taken by counsel for the prisoners to place the evidence upon the record, by motions for a new trial and exceptions. William Gibson appeals.
The errors assigned are--
1. The exclusion of certain evidence.
2. Overruling the motion for a new trial on the weight of evidence.
3. In overruling that motion based upon the ground of newly discovered evidence.
It will be seen that the verdict is the utmost limit of the law in cases of manslaughter. It is hence to be inferred that the case is one of great aggravation.
On looking into the evidence, we find the facts to be briefly these:
There was a show at Martinsville, on the day of the alleged murder. It appears that Frederick Mann, a brother of the deceased, kept a stand for the sale of liquor. A difficulty occurred between Robert Gibson and one Harbert, who attended the stand assisting Mann. A scuffle ensued. Robert Mann interfered, and he and Robert Gibson clinched. Gibson got the better, and they were separated. Robert Gibson renewed the combat by throwing a club at Robert Mann. Up to this point it does not appear that William Gibson had interfered in any way. Upon the second rencounter it appears to have assumed the form of a clan fight: the Manns, three brothers, and Harbert, their brother-in-law, on the one side, and the Gibsons on the other. One of the Manns drew a knife, another used an axe, a third had a bowie-knife, and on the same side bricks and tumblers were used early in the combat. The evidence goes strongly to show that William Gibson had his knife open and ready from the beginning, but that he did not use it until the Manns commenced using the hatchet and other weapons. As might be expected, there is great confusion as to the exact order of events. But the preponderance of evidence is strongly in favor of the verdict, that the fatal blow was struck by William Gibson during the second rencounter. The wound was in the abdomen, and according to the medical witness, necessarily mortal.
The errors assigned will be noticed in their order.
Frederick Mann, brother of the deceased, was asked, with a view to his impeachment, "Did you, or did you not, in Doctor Blackstone's office, in this town, on the evening of the fight, in the presence and hearing of the doctor and one Miles, say that one of the persons engaged in the fight with your brother, the deceased, would not fight again, as you had sunk the poll of the hatchet in his head?" The state objected, and the Court sustained the objection. The prisoner excepted.
We think the ruling erroneous. The witness had participated in the fight on the side of the Manns. He had expressly said in his examination, that he had not seen the hatchet used by any one. If he had elsewhere said that he himself had used it on the head of one of the Gibson clan, it was clearly a matter pertinent to the issue, and went strongly to his credibility. Besides, he was himself a participant in the fight about which he was testifying. It was the same fight of which he boasted, in the presence of Blackstone and Miles, that he had sunk the poll of the hatchet into the head of one of the persons engaged. The whole transaction--every part of the res gesta-- was material to the prisoner, as going to show on which side the provocation was--which first resorted to the use of deadly weapons. According to this man's evidence on the stand, he had not used a deadly weapon during the melee. He had simply held the bowie-knife in his hand, but had not used it. Nor had he seen any one use the hatchet. According to his boasting at Blackstone's office, he sank the poll of the hatchet into the head of his antagonist. This discrepancy was most material for the prisoners, both as showing the weapons against which the Gibsons had to contend, and as a test of the credibility of the witness.
Furthermore, the Manns were three brothers and a brother-in-law--four to two. If, in addition, the Manns carried on the combat with deadly weapons, it might go far to justify the use of such weapons by the Gibsons.
It is in evidence that Frederick Mann went to his wagon and took his bowie-knife out of a basket. He had it during the second rencounter. This he admits in his evidence, but says he did not use it on any one, and that the blood on the bowie-knife was from a blow on the nose which he, Frederick, had received in the melee. Other witnesses say the fatal blow was given with a large and bright blade in whose hands they are not positive, but think it was by William Gibson. William Gibson and Frederick Mann do not seem to have been distinguished from each other by some of the witnesses. For Harper and others testify that they saw William Gibson go to the wagon and get the bowie-knife, and on his return deal the fatal blow. Yet it is clear that Frederick Mann was the person who took the knife from the wagon. If Harper is correct then, the probability is that in the confusion and change of position by the combatants, Frederick Mann, in striking at Robert Gibson, inflicted the fatal wound on his brother with the bowie-knife. There is other evidence corroborating that hypothesis.
Still we think the preponderance is in favor of the verdict; and even if the preponderance were otherwise, it has long been the settled rule of this Court not to disturb it. Weinzorpflin v. State, 7 Blackf. 186; Ledley v. State, 4 Ind. 580.
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