Gilmore v. State

• Decision Date: 17 May 1900
• Citation: 126 Ala. 20,28 So. 595
• Parties: GILMORE v. STATE.
• Court: Alabama Supreme Court

28 So. 595

126 Ala. 20

GILMORE v. STATE.

Supreme Court of Alabama

May 17, 1900

Appeal from circuit court, Geneva county; John P. Hubbard, Judge.

Houston Gilmore was convicted of murder in the first degree, and appeals. Affirmed.

The appellant was indicted and tried for the murder of Henry Thompson by shooting him with a pistol, and was convicted of murder in the first degree, and sentenced to the penitentiary for life. Before entering upon the trial of the case, the defendant filed his petition, and moved the court for a change of venue, in which he averred that "he could not have a fair and impartial trial in the county, for the reasons as follows: That the public sentiment of the people of this county has become so excited and aroused as to defendant that he cannot get a fair trial in this county that various persons of prominence in this county, living in various portions of the county, have been and are taking active stands against defendant, and using their influence to create a general sentiment that defendant is guilty; that they are many of them now in Geneva so using their influence and that various persons are constantly giving public expression to their opinions that defendant is guilty of the crime charged against him; and that, on the whole case, as thus made, he cannot get a fair and impartial trial of this cause." To support this motion there were affidavits made by the defendant, Houston Gilmore, and his attorney, M Sollie, and J. J. Gilmore. These affidavits were filed with the motion, and averred that, in the opinion of the affiants it was necessary that the defendant should be granted a change of venue, in order for him to secure a fair trial because the condition of the public mind in Geneva county was at the time so excited that it would prevent him having a fair and impartial trial at that time in Geneva county. This motion was overruled, and the defendant duly excepted thereto. The defendant moved the court to quash the special venire drawn for the trial of his case, upon several grounds. The principal ground, and the one relied on to have the motion granted, was that the regular venire of jurors drawn and summoned for the week of the court in which the trial was to be had, and which constituted a part of the special venire drawn for the trial of the defendant, was not drawn by the sheriff, the clerk of the circuit court, and the judge of probate of Geneva county, but was drawn by the county commissioners of said county, acting as a jury commission. The facts constituting the grounds of this motion were admitted, and upon hearing thereof the court overruled the motion and to this ruling the defendant duly excepted. The defendant then moved the court to quash the indictment preferred against him, upon the ground that said indictment was returned by the grand jury which was drawn by the commissioners of Geneva county acting as a jury commission, and not by the sheriff, judge of probate, and clerk of the circuit court of Geneva county, as required by law. The facts constituting the ground upon which the motion was made were admitted. The court overruled the motion, and to this ruling the defendant duly excepted. The defendant filed a plea in abatement, in which he averred that the indictment was not preferred against him; that the defendant named in the indictment, as written therein, was Hauston Gilmore, while the name of the defendant was Houston Gilmore. The facts relating to this plea, and the rulings thereon, are shown in the opinion.

On the trial of the case it was shown that the killing occurred about 2 o'clock in the morning, at the home of one J. J. Gilmore, who was the grandfather of the defendant; that there was a dance there on the night of the killing. The state's evidence tended to show the following facts: Houston Gilmore and Henry Thompson, the deceased, were both at the dance, and were both drunk. A short time before the fatal difficulty the defendant walked up to Henry Thompson, and, tapping him on the shoulder, told him that he understood that he had said that he (Thompson) could whip the defendant before he could get out of the yard. Thompson denied having made such statement, and Houston told him to walk out of the house into the yard. The two men walked from the house into the yard, and outside of the gate; Houston Gilmore walking in front. At the gate they were joined by Albert Owens and Dave Thomas. When they were outside of the gate, the defendant repeated his statement, and upon Thompson denying it the defendant called him a d___ liar, and told Thompson that he wanted to give him a chance to whip him right them. Thompson replied that he did not want to have a row, and that he had nothing to fight him, and, pulling a black-handled knife from his pocket, stated that that was the only weapon he had. Thereupon Albert Owens and Dave Thomas interfered. Thompson then walked off some distance, while Owens was holding the defendant. After Thompson had gotten 10 or 15 steps away, Owens released the defendant, and they all started into the house. Something being said about settling the difficulty between the two, the defendant walked to where Thompson was standing, and stated that he could settle it then, and again charged Thompson with making the statement. Thompson replied that it was a G___ d___ lie, whereupon the defendant told him not to curse him, and drew his pistol and fired three times, each of the shots striking him, from the effects of which wounds Thompson died in a few moments. There was evidence for the defendant tending to show that he shot the deceased in self-defense, and that the deceased had threatened the life of the defendant, which threats were communicated to the defendant. The defendant, as a witness in his own behalf, testified that, after he had stated that he and the deceased could settle the matter themselves, the deceased called him a G___ d___ liar, and started towards him, taking a knife or pistol from his pocket, and that as he started towards him the defendant fired the fatal shots. Several of the witnesses for the state testified that after the shooting, when the defendant entered the house, he walked into a room where there were several people, and stated that he had "killed Henry Thompson, and killed him in cold blood." The defendant objected to this statement on the part of each of the witnesses as made, and moved the court to exclude the same, on the ground that it was irrelevant, immaterial, and incompetent. The court overruled each of such objections and motions, and to each of these rulings the defendant separately excepted. The several witnesses so testifying to these statements on the part of the defendant also testified, in connection therewith, that immediately upon making the statement the defendant stated that he was going to leave the country, and shook hands with several of his friends who were in the room. One of the witnesses for the state testified that on the morning after the shooting the defendant came to his house, and, after saluting him, said, "I get me a man last night." The defendant objected to this testimony, and moved the court to exclude the same from the jury, upon the ground that it was irrelevant, immaterial, and incompetent. The court overruled the motion and objection, and the defendant duly excepted. Another witness for the defendant testified that, on the morning after Henry Thompson was killed, the defendant came to her house and told her that he was going to leave, and then bade her good-by. One Jeff Adkinson, a witness for the state, testified that, in the early part of the night of the killing, Henry Thompson was very much under the influence of whisky, and that he took Thompson to the room and got him to lie down; that while they were in the room Thompson told him that he was going to whip Houston Gilmore, and pulled out a large Barlow knife while he was talking about Gilmore; that thereupon the witness Adkinson asked Thompson to exchange knives with him, and gave him a small, black-handled pocketknife in exchange for the large Barlow knife. Each of these knives was introduced in evidence, and the witness Jeff Adkinson identified the black-handled knife which was taken from the body of Thompson after he was shot as being the knife he had traded with him. Some of the witnesses from the defendant testified that after the shooting the defendant came into the room of the house, where there were several persons, and, pulling a large Barlow knife from his pocket, he testified that Thompson was coming on him with that knife, and he had to kill him or be killed by him; that the knife so taken from his pocket after the shooting was shaped somewhat like the knife that was introduced in evidence while Jeff Adkinson was testifying, but was not the same knife, and was not exactly of the same character. A. C. Parker, a witness for the state, testified that he had, before the killing, sold to the defendant a large Barlow knife. Upon being shown the large Barlow knife which was introduced in evidence, and which was identified as the one Jeff Adkinson exchanged with the deceased, the witness Parker was asked if that was the knife, or was it one like that. He answered that it was not the knife, and, while the one he sold to the defendant was not of the same character, it was something like it. The defendant objected to all of this testimony on the part of the witness Parker, and moved to exclude the same from the jury on the ground that it was illegal, immaterial, and incompetent. The court overruled the motion and objection, and the defendant duly excepted.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges and separately excepted to the court's refusal to...