Gilliam v. State

• Decision Date: 22 April 1925
• Docket Number: (No. 8804.)
• Citation: 272 S.W. 154
• Parties: GILLIAM v. STATE.
• Court: Texas Court of Criminal Appeals

272 S.W. 154

GILLIAM v. STATE.

(No. 8804.)

Court of Criminal Appeals of Texas.

April 22, 1925.

Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.

Dick Gilliam was convicted of murder, and he appeals. Reversed and remanded.

J. H. Beavers, of Winnsboro, J. A. Ward, of Mt. Pleasant, and Maurice Wilkinson and F. B. Caudle, both of Mt. Vernon, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

HAWKINS, J.

Defendant is under conviction for the murder of O. F. Crone. Punishment is 20 years' confinement in the penitentiary.

Defendant and deceased lived upon land which belonged to a Mr. Horn. Deceased as Horn's agent had rented to defendant the land worked by him. The killing occurred on the morning of September 20th, at defendant's home. Friction had arisen between the parties. Some time before the killing two children of deceased had gone to defendant's house and had been followed by a dog which bit one of defendant's children, however, not injuring it to any extent. Defendant killed the dog. If deceased raised any disturbance because of this, the record does not disclose it. Some disagreement had come up between defendant and deceased about other matters referred to in discussing some of the bills of exception. There were no eyewitnesses to the killing save defendant and his wife. Witnesses who arrived at the scene shortly after the homicide described the location of the body of deceased, which was lying near a gate, and upon asking defendant what the trouble was one witness was told, "I don't know." Defendant replied to another witness who remarked, "It looks like you have had some trouble." "Yes; but it is not worth while to state it here." Defendant and deceased lived some 400 yards apart. In going from the home of deceased to the land worked by him they went by defendant's house. Deceased had started from home on the morning of the killing with some of his children, but had forgotten the cotton scales and turned back to get them. The children went on to the field.

Defendant complains because the state was permitted over his objection to prove by the witness Sanders that for a period of about 10 days immediately preceding the killing he had seen defendant off of his own premises wearing a shoulder scabbard for a pistol, on the ground that said evidence was admitting the proof of the commission of another offense by defendant, to wit, unlawfully carrying a pistol. This witness had testified that some 10 days or 2 weeks before the killing defendant had sought to borrow witness' pistol and also to buy it. He told witness he wanted the gun for protection because he could not afford to fight a man like deceased fair. Witness declined to loan the gun, but defendant went to witness' house and got it later returning it. Afterwards defendant showed witness a pistol which defendant said he had bought. Defendant admitted while testifying as a witness in his own behalf that he had been carrying a pistol in a shoulder scabbard, but undertook to explain his conduct in this respect by saying he was expecting trouble from some parties in Titus county over some meat which had been stolen from him. It is further in evidence from defendant that he was not on good terms with deceased on account of deceased not having fixed a well which defendant claims he ought to have done, and on account of deceased injuring some of defendant's cotton by driving over the ends of the cotton rows, and also because deceased had broken one of his double trees. The cases cited by defendant holding evidence of other crimes inadmissible we think have no application in a case like this. It is well settled that any competent evidence which tends to defeat the defense urged is admissible, although it may tend to show or does show another offense. This principle is illustrated by Craig v. State (Tex. Cr. App.) 23 S. W. 1108; Bedford v. State, 75 Tex. Cr. R. 309, 170 S. W. 728; McKinney v. State, 8 Tex. App. 626; Asbeck v. State, 70 Tex. Cr. R. 225, 156 S. W. 925. See, also, Wharton on Homicide, § 598; 1 Bishop, Criminal Procedure, § 1067. Defendant sought to justify himself on the ground of self-defense. The evidence objected to was admissible to show preparation, premeditation and malice.

Objection was also interposed to the state proving by Sanders that about 10 days before the homicide he told defendant deceased claimed to have caught witness and defendant playing cards and wanted witness to go to the county seat and report the matter against defendant, whereupon defendant said if deceased "turned him [defendant] in he would never remember turning in the next one." The objection was twofold: First, that the evidence sought to incumber defendant with proof of another offense (playing cards); second, that the threat was conditional depending on a contingency never shown to have transpired. The first ground of objection is disposed of in the discussion of the preceding bill. The threat would have been meaningless without information as to the subject-matter of it. To support the objection that the threat was conditional, and therefore inadmissible, Maclin v. State, 65 Tex. Cr. R. 384, 144 S. W. 951, is cited. The threat in that case was rejected as not being shown to have been directed toward deceased. It was peculiarly worded, and some language in the opinion indicates that it should also have been rejected because conditional in its nature. Aside from the fact that it was not shown to have been used with reference to deceased, the other reason for holding it inadmissible is reflected in the statement by the writer of the opinion that:

"This threat is too uncertain in its character, and is too indefinite, we think, to be admissible under the facts of this case and the authorities."

We do not regard the case as authority for excluding proof of conditional threats by one accused of murder, where they show animosity, ill will, and malice towards the party afterwards slain. Mr. Wharton states the rule very succinctly in section 908, p. 1702, vol. 2, Wharton's Crim. Ev. as follows:

"The relevancy of the threats is not affected by the fact that they are impersonal or conditional, where the circumstances show that they were directed towards or included the deceased."

Numerous cases from this court have followed the rule thus announced. See Russell v. State, 84 Tex. Cr. R. 245, 209 S. W. 671; Pace v. State, 69 Tex. Cr. R. 27, 153 S. W. 132; Brewer v. State, 68 Tex. Cr. R. 483, 153 S. W. 622; Owen v. State, 52 Tex. Cr. R. 65, 105 S. W. 513; Dowell v. State, 58 Tex. Cr. R. 482, 126 S. W. 871; Harrelson v. State, 132 Tex. Cr. R. 534, 132 S. W. 783.

Bills 3 and 4 relate to the same subject and may be considered together. In both of them complaint is made at the refusal of the court to withdraw certain testimony which had been introduced by the state. The killing occurred on the morning of September 20th. The state had proven without objection that the district court and the grand jury were in session at Mt. Vernon on September 19th, and had also proven by a son of deceased that he and his father had gone to Mt. Vernon on that day and carried some cotton, leaving Mt. Vernon about 4:30 in the afternoon, and returned to their home. Bill No. 4 recites that the testimony of deceased's son was admitted over objection of defendant. If this evidence was in fact objected to, the ground of objection is not shown in the bills now being considered, and we find no other bill complaining of the reception of such evidence. The bill certifies that no evidence was introduced showing that defendant did or did not know that the grand jury was in session, nor any showing that defendant knew deceased went to Mt. Vernon on the day before the killing, and that there was no evidence showing that deceased or any one else had made a complaint against defendant for playing cards. The bill further shows that deceased and defendant resided about 400 yards apart; that defendant's residence was some 20 feet from the road which deceased traveled in going to and from Mt. Vernon. After the evidence was closed defendant made a motion requesting the court to withdraw the evidence as to the grand jury being in session and deceased's trip to Mt. Vernon. The remaining portions of the two bills contain the reasons urged for withdrawal of the...