Gregory v. State

• Citation: 94 S.W. 1041
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Decision Date: 16 May 1906
• Parties: GREGORY v. STATE.

94 S.W. 1041

GREGORY v. STATE.

Court of Criminal Appeals of Texas.

May 16, 1906.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Wallace Gregory was convicted of murder, and he appeals. Reversed.

Riddle & Keith, for appellant. Martin & George, and J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J.

The appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.

The theory of the state was that deceased, Gilbreath (from whom appellant rented land), was killed by appellant because of some differences between them in regard to renting lands for the succeeding year. The state proved threats by appellant against deceased. His body lay in front of appellant's house, not far from a path that led by appellant's house to deceased's house. The state's theory was that deceased was passing along said path, going from a point beyond appellant's house, and that appellant on account of the grudge about said rental contract shot and killed him that Sunday afternoon as he passed his house. The theory of appellant was to the effect: That some two or three months prior to the homicide he had suspected undue familiarity between his landlord (deceased) and his wife. That on one occasion, about a month or six weeks before, he had seen her late in the evening leaving a blacksmith shop down in the field and coming towards the house, and directly afterwards he saw deceased leave said shop and go towards his own home. That he charged her with infidelity in regard to said transaction, but she denied it. That after that he watched them. That on the Sunday evening of the homicide he left the house, telling his wife that he was going down in the field, and would likely go to a neighbor's before he got back, and it would be late before he returned, intending to watch said premises to see if deceased came there. That he did go in the brush and watch. In a short while he saw deceased leave his house (which was situated several hundred yards from where he lived) and start in the direction of appellant's house. That he, appellant, came closer to the house, keeping under cover, and that he opened the door and discovered deceased with his arms around his wife, standing near the bed, and immediately exclaimed, "I have caught you. I am going to kill you." And said to his wife, "This is not the first time? And she said, `No.'" He then fired on deceased, the shot taking effect, and deceased immediately ran out of the house. He shot him again, and about the time he got in front of the door deceased fell in front of the door, a few feet therefrom, and expired. His wife corroborates his statement as to the facts immediately attending the killing, and also testified that deceased and she had been unduly familiar for several months prior to the homicide; that on that Sunday evening deceased came to the house, asked where her husband was, and she told him that he had gone and would be gone some time, and he came in, and immediately began taking liberties with her person as they were sitting down, and had about persuaded her to get on the bed; and they had just gotten up from their seats, and were standing near the bed, when appellant rushed in the room, and the firing began. This is a sufficient statement of the case to discuss the assignments.

Appellant reserved several bills of exceptions to the action of the court admitting statements made by defendant to others, insisting appellant was under arrest at the time and had not been properly warned. It appears that appellant went to Dublin on the evening after the homicide, arriving there at night, for the purpose of surrendering. He went with Fred Robinson, a neighbor, from near the scene of the homicide to Dublin, going to the house of said Robinson, and there proposed to him to let him have a horse and go with him to Dublin, so that he could give up. After arriving at Dublin he stopped at the restaurant of one Hosh. The city marshal, Trout, being sent for, came to take charge of appellant, and he gave him his pistol, and said "he wanted to surrender; that he had killed old man Gilbreath." This statement was objected to by appellant on the ground that appellant had really surrendered to Robinson, and had certainly surrendered to Trout, and his statement to him, unwarned, as shown, was not legitimate evidence against him. The court explains this by saying that appellant had not actually surrendered to Robinson, but merely at his request Robinson accompanied him to town to carry back the horse, and that appellant's statement to Trout was part of the act of surrender, and mere res gestæ and explanatory of the act in connection with defendant's delivery of his pistol to Trout, and that said Robinson himself testified at the instance of defendant (immediately after the court overruled defendant's objection and admitted the evidence that defendant told him at his [witness's] house that he came to borrow the horse) that he had killed old man Gilbreath, and subsequently defendant and his wife both took the stand and testified that defendant killed old man Gilbreath. Of course, what occurred subsequent to the introduction of this evidence by the state in introducing testimony to the same effect by defendant would not justify the action of the court in admitting illegal testimony. However, we are inclined to believe it was competent to admit what appellant said to Trout when he surrendered to him as a part of the res gestæ of the act of surrender. We also agree with the court that appellant did not surrender to Robinson; that Robinson merely came with him to Dublin at his request as a companion. In this connection we would state, in regard to the admissions or confessions of appellant to Fulkerson, which were testified to by Fulkerson, that, as Fulkerson stated that he warned appellant before he made any statement and this warning was denied by appellant, the court should have submitted this issue to the jury.

On the trial the state introduced some 20 witnesses, who testified, over the objection of appellant, that they were acquainted with deceased during his lifetime for different periods of time, ranging from 20 to 50 years, and were well acquainted...