Gilcrease v. State

• Decision Date: 28 November 1894
• Citation: 28 S.W. 531
• Parties: GILCREASE v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W. 531

GILCREASE v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1894.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

H. L. W. Gilcrease was convicted of murder, and appeals. Reversed.

Kearby & Muse, for appellant. R. L. Henry, for the State.

HURT, P. J.

The defendant was charged by indictment with the murder of W. W. Holman. Trial by jury resulted in conviction for murder in the second degree, with the penalty assessed at six years in the penitentiary. Judgment and sentence accordingly, from which defendant prosecutes this appeal.

An application to continue for the want of testimony of the witnesses to prove threats made by the deceased to kill defendant, which were communicated to him; also, to prove that deceased, as well as his brother, had guns at the place and time of the shooting. The theory of the state was that appellant, unprovoked, killed the deceased; that of the defendant was self-defense. Both theories were supported by testimony; hence a conflict in the testimony as to who was the aggressor,—who began the violence. Threats, whether communicated or not, in such a conflict, are of very great importance, as they tend to solve the problem at issue. The state's witnesses deny that the deceased was armed with a gun at the time he was shot. If this be true, appellant was in no actual danger when he shot deceased, nor was the danger apparent, when all the circumstances are considered, and self-defense was not in the case. The application should have been granted, although it was the second application; and, after the trial, the court, viewing the facts of the case as developed on the trial, should have granted a new trial to have enabled the appellant to obtain the testimony, though it was somewhat cumulative. By a careful inspection of the record it is evident that Mrs. Holman was simply a tenant at will; that she had no right to, or control of, the fences surrounding the farm. When, by permission of appellant, she went into the cabin, there was no gate at the place where a gate was subsequently placed, and appellant had the right to place a gate there, and close it, without infringing upon any of the rights of Mrs. Holman. Notwithstanding this, the court in its charge repeatedly instructed the jury in regard to appellant's provoking the difficulty, or producing the occasion, which led to the killing of deceased; limiting his right of self-defense by these charges, and in one part thereof calling the attention of the jury specially to...