
    
      State v. Gilbreath.
    
      (Nashville.
    
    January 28, 1901.)
    1. Murder. Facts that support verdict for murder in first degree.
    
    The facts set out in the Court’s opinion are held sufficient to support a verdict for murder in first degree, with death sentence, and to negative the defense of accidental killing of a wife by her husband. (Post, pp. 503-508.)
    
    .U. New Teial. Affidamits for insufficient, when.
    
    Affidavits afford no ground for new trial, which disclose only matter that would be clearly prejudicial to the applicant on another trial. (Post, pp. 508-510.)
    
    Í’EOM LINCOLN.
    Appeal in error from Circuit Court of Lincoln County. M. D. Smaxxman, J.
    W. L. Acuxf and J. W. HoxmaN for Gil-breath.
    Attorney-general Pícele for State.
    
      
      The Governor commuted the death sentence to imprisonment for life.— ■Reporter.
    
   WiLKss, J.

Defendant is convicted of murder in tiie first degree for killing bis wife, and sentenced to death, and bas appealed. Tbe killing was with a shotgun, and at a church supper, in the presence of a large crowd of 'negroes, and is not denied. The only defense on the merits is that the killing was accidental, and not intentional. Quite a number of persons were examined who were eyewitnesses of the occurrence, and there is but little conflict in their testimony. It appears that the defendant was under the impression that too intimate relations existed between his wife and one George Johnson, and he was watching them closely. All the parties, Johnson, the defendant and. his wife, were present at this, church supper. The. defendant had his gun with him, and says he was carrying it home ■ from his-mother’s; that he stopped by the church and set the gun over in a graveyard inclosure outside of the church,, and went in, and according to his version saw George promenading around the church with something concealed in his hand which he was shaking at ' defendant’s wife; that while he was looking at George he saw him give defendant’s wife some money, which he took to be a quarter. He then went out of the house, got his gun, cocked both barrels, and re-entered the church, holding the gun with the butt under his overcoat, the barrels pointing towards the floor. He immediately thereafter shot George Johnson, who, it appears, was standing at a table talking with Lou Olark, the sister of defendant’s wife. The-details of this killing do not appear in. this record. Tbe church was crowded, and a stampede for tbe doors followed immediately on tbe first shot. Tbe defendant says be tried to escape tbrongb the door, but tbe way was crowded and jammed, and in order to get along be bad to dodge and turn bis gun from side to side to get by those in his way. He was still carrying it by bis side, with tbe butt under bis overcoat, when about tbe middle of tbe cburcb some one pointed a pistol at him and fired, tbe bullet grazing bis nose and glancing off bis cheek, making a flesh wound. Tbe shock of ' tbe bullet striking him caused him to grip bis gun, and be felt it jump in bis bands, but did not know that any one was shot.

Tbe great weight of evidence is that the pistol shot was after- both tbe other shots. He pressed through tbe door, and after be got outside be beard some one say that Ella, bis wife, was shot. He turned to go ■ back in tbe bouse, but some one pointed a pistol in his face, and tbe door was shut. Defendant says be never saw bis wife after be fired tbe shot at Johnson, and that be was all tbe while dodging from side to side trying to get out.

This is the substance of bis statement. One witness, Bud Briggs, colored, corroborates him in the statement that be turned his gun from side to side when it would strike any one in bis way. ■ This witness states that defendant was running straight towards the door when the gun bred, and did not stop or turn aside; that his face was toward the door, and he did not loo]-: at his gun' nor at his wife, though she was in front of him, and that the gun was kept at his side and not raised.

There was testimony of several witnesses to the effect that this witness, Briggs, said before the trial that defendant ran through the church after his wife with his gun pointed at her.

Quite a number of witnesses were examined for the State, and virtually agree in their statements that after George Johnson was shot, Ella, defendant’s Avife, started to run, and defendant started after her ,and turned his gun toward her; that he kept his gun pointed toward her all the time, and as she ivent around the crowd defendant turned the gun after her; that she cried out as she ran that she had not done anything, and was not talking to him. •

The testimony is uncontradicted that the defendant did not put his gun to- his shoulder to take aim, but . held it in the direction of his wife, and with the butt under his overcoat and about level with his waist.

This is the testimony, in substance, of six ('6) witnesses. Witness Lou Olark adds that defendant waited till no one Avas in the way before he shot his wife; that she turned from the door because she could not get out, and just at that time she was shot. The woman was shot in the thigh, and died in a short tvhile. Witness George Wright is still more specific, and says that the woman turned from the door and ran towards the northeast corner where he was, and the defendant followed her; that she ran in front of him, and took him by the strap of his suspenders and said, “Don’t let him kill me!” that defendant started around him, and she . then ran behind him, and defendant thereupon stepped back a step so he could get around him, and fired, and that he could not have shot her before on account . of the crowd. This witness adds that defendant kept pointing his gun at her as she ran around the crowd toward the door, and when he was between them defendant stepped back so he could shoot her and not hit the witness. On cross-examination this witness gives some confused and inconsistent statements, but in the main reiterates his original statement. He is not corroborated in his statements about the woman running around him and calling on him. to protect her, and we can give but little credit to this testimony except so far as corroborated by other witnesses.

The witness, John Harris, states, however,- that the defendant kept the gun pointed at her until no one was in the way, and then shot her, and he was holding the gun at the time at arms’ length, . but does not know whether he was looking at it or not. Nearly all tbe witnesses state that tbe woman was shot after sbe turned from tbe door and was running’ up tbe side of tbe room.

There was testimony showing’ that the defendant was very jealous of bis wife; that be bad mistreated her, and that be bad abused her, and beeta. arrested for it, and be bad said be would kill her but bated to do so, as sbe was pregnant. He was morbidly jealous of her, and perhaps no.t without some grounds.

• We have not been able to find any errors in tbe charge of tbe Court, and none have been pointed out.

Tbe defendant, as well as several other witnesses, makes affidavits on a motion for a new trial, and it is .principally on matters set up in these that a new trial is asked. It appears from tbe affidavits, and otherwise, that tbe defendant bad two indictments pending against him for murder at tbe same time. One for killing Gfeorge Johnson and one for killing bis, defendant’s, wife. Tbe defendant is a negro, and was not able to employ an attorney to defend him. The Court appointed two young attorneys of the Fayette-ville bar to represent him. This was done about ten o’clock in the morning. After consulting with tbe defendant, at bis request they announced ready for trial. While tbe preliminaries of tbe trial were being arranged tbe question was raised which case would be first tried. Tbe Court announced that tbe case involving tbe killing of tbe wife would be first tried. Counsel for tbe defense tlien stated that they had supposed tbe case for killing of Johnson would be first tried, and they bad prepared for that, and announced ready in that, bul bad not conferred about tbe other, and were not. ready in that, and bad made no preparations in that case. Tbe Court, however, required tbe trial to proceed for tbe killing of tbe wife. Tbe affidavits which are introduced on tbe motion for a new trial to show what other evidence could be introduced on a second trial are not important or beneficial to tbe defendant; indeed, they are, with one or two exceptions, prejudicial to him, -as they 'set out- differences between defendant and bis wife, and illustrate bis jealousy, and thus show, a motive for the killing, and support the theory that the killing was not accidental, but designed. A part of the testimony of one witness, Rawlston, might have been beneficial to tbe defendant, as tending to show that be loved his wife and treated her well, bút tbe great weight of tbe testimony on the trial was to tbe contrary. It appears that this witness, Rawlston, was present at the consultation between defendant and his counsel before going into trial, and his testimony could and should have been given on tbe original hearing. Indeed, it appears that a witness in the record called Jim Rawlston, was examined, and testified substantially as appears in tbe affi davit. This same witness, however, in his affidavit states damaging facts to the effect that the defendant’s wife had attempted to poison him with glass beat up and put in bread. Other affidavits tended to show that improper relations-existed between the defendant’s wife and George Johnson. This could not benefit defendant on the-trial of this case. The testimony of Matt ITughes-alone would have been of advantage to defendant on a' new trial. We are unable to find any reversible error in this record, and can see no-good that can result to defendant from a new trial. The facts are few and’ simple, • and the-affidavits for a new trial do not show that any other and further defense can be made than has-been made. We are therefore constrained to affirm the judgment of the Court below, and it is the-judgment of the law and sentence of this Court-that the defendant, John Gilbreath, be delivered’ to the Sheriff of Davidson County, to be by him safely kept and delivered to the Sheriff of Lincoln County, and by him kept until Wednesday, March 20, 1901, when within legal hours, and’ in the manner prescribed by law, he will be hanged by the neck until he is dead.

DISSENTING- OPINION.

WiLKES, J.

Upon the record as presented to» this Court I think the judgment is warranted. I am, however, of opinion that defendant’s counsel were forced to go to trial without consultation with their client or their witnesses, and without that deliberation that should characterize a trial involving the' life of a citizen. Counsel were young and inexperienced, and had prepared themselves upon one case and were required to go to trial upon the other. The testimony and defenses in the two cases might have been, and probably were, very different, even though the offenses were committed ' so near to each other in point of time. Defendant’s version of the killing that it was accidental, was at least plausible, and made out by testimony was sufficient to reduce the . crime to a lower grade of homicide than murder in the first degree, but his defense was not developed along the line of accidental killing, but along lines that would have been applicable to a defense of the other indictment in killing Johnson. It is" evident that counsel had considered the case in this view and along this line appropriate to the defense for the killing of George Johnson, but not to a defense for the killing of defendant’s wife. It is evident that defendant was insanely jealous of his wife, and had some ground therefor. He thought, no doubt, that he was upholding the sanctity of his marriage relation.

Eor these reasons, and because the proof does not, in my opinion, exclude the ida of accidental killing beyond a reasonable doubt, and believing tbe case should be more fully developed along this line, I prefer that defendant be given another trial, and hence respectfully dissent from the view of the majority.  