48 S.W.2d 632 | Tex. Crim. App. | 1931
Lead Opinion
Conviction for murder; punishment, twenty-five years in the penitentiary.
In this case it was the state's theory, based on circumstantial evidence, that appellant poisoned her husband by giving him strychnine. Deceased habitually used Sal Hepatica. He took a dose of this powdered medicine, became violently ill, and shortly died in convulsions. The bottle of Sal Hepatica from which the dose was taken, upon analysis, was found to contain strychnine, likewise the stomach of deceased. Deceased and appellant lived at Kingsville, Kleberg county, Texas. A clerk in a drug store at Corpus Christi, Texas, testified that shortly before the death of deceased he sold to appellant a bottle of strychnine, and that in his presence and at his request she wrote in his register of poisons sold, her name, address and the purpose for which she desired said poison. The witness produced the book, identified appellant and her writing, and same was introduced in evidence by the state. According to this witness she wrote in said register "Mrs. J. D. Moore — Midway Camp — Strychnine for dogs." The state also made proof that there was no Mrs. J. D. Moore registered as a guest at Midway Camp in Corpus Christi at said time.
Thereafter appellant took the stand as a witness in her own behalf and specifically denied being in said drug store and the purchase or use of strychnine, and also denied that she wrote anything on said poison register. Bill of exception No. 13 sets forth that on cross-examination, over objection of appellant, the court compelled her to write in the presence of the jury certain signatures, including Mrs. J. D. Moore, and the words "Middle of December," the objection to this being that same was compelling the defendant to give evidence against herself in violation of the Constitution and Bill of Rights.' (Constitution, art. 1, sec. 10).
With the utmost deference to the views of others, to the writer the principle involved and applicable is clear, and the rule obvious. As said in Gallaher v. State, 28 Texas App., 247,
An ordinary witness has no right of option to choose whether he will become such, but may be forced on the stand by compulsory process, and hence in obedience to our law he may thereafter, in a proper case, decline to answer questions whose answers would tend to criminate him. The accused, on the other hand, knows in advance of becoming a witness, that if he take the stand the state will seek to elicit from him every fact affecting his status as a witness and pertinent to his guilt in the particular case on trial. Prior to becoming a witness he is wholly immune from inquiry. The Constitution protects him. When he elects to waive its shelter he thereby abandons his right to refuse as a witness. He may not thereafter give answer only to such questions as those whose reply would favor himself, but must yield to all pertinent inquiry. His voluntary offer of personal testimony deemed by him competent and material to the issues, amounts to a waiver on his part as to any relevant fact, because each relevant fact is and must be but a part of the whole case. Nor are we able to draw the fine distinction that the accused may give testimony with his lips or by gestures, and be cross-examined as to same, but that he may not be asked to give manual demonstration of matters material. The point here immediately at issue; that is, did she write, was affirmed by the clerk of the drug store mentioned, and was by appellant pointedly denied by her oral statement. Comparison of handwriting by the use of authentic signature, is a form of testimony quite common in all jurisdictions. In this state by the terms of article 731, C. C. P., such comparison is specifically authorized by the jury itself. Fry v. State,
In Connors v. People,
We further quote from State v. Wentworth,
From Serrato v. State, 74 Tex.Crim. Rep.,
Considering the authorities cited by appellant on his point, we observe that Gallaher v. State, 28 Texas App., 280, says nothing pertinent. When, as revealed by the opinion in that case, the accused was asked to stand and put a hat on his head and handkerchief over his face in the court room so that he might be viewed thus garbed, the accused made no objection but complied. We find some dicta expressions in the opinion which go no further than to observe that if the accused had refused when requested, as above stated, a different question would be presented. In the above case the accused had not taken the witness stand. Martin v. State, 80 Tex.Crim. Rep.,
We are inclined to question what is said in Turman v. State, 50 Tex.Crim. Rep.,
What we have said above disposes of the further objection made by appellant to the use, for purposes of comparison by the jury, of what appellant wrote while on the witness stand, these being the grounds of the objection and exception in said bill, and same have been considered, though presented in one bill, inasmuch as they are so closely related as to amount to but one subject.
Bill of exception No. 14 complains of the refusal of a new trial sought because apparently of misconduct of the jury or the prior prejudice of one member of the jury. Oral testimony was heard by the court and in same the affidavits attached to the motion for new trial appear to have been contradicted, and we are not prepared to say that in the condition of conflict appearing the court was without ample reason for *381 overruling said motion. This also applies to the refusal of a change of venue, complaint of which appears in bill of exception No. 15.
We do not think the argument complained of in bills of exception Nos. I and 2 of such character as to call for a reversal. The court instructed the jury not to consider the argument set out in bill of exception No. 1.
Bill of exception No. 5 sets up that the witness Mayo was permitted to testify upon re-direct examination by the state that a forgery case against him, inquiry regarding which had been made by appellant on cross-examination, — was not tried, and to explain the reasons why, as well as to further explain why he did not appear for trial at a time when his bond was forfeited, a fact developed on cross-examination. These questions having been brought out on cross-examination for the purpose of affecting the credibility of the witness before the jury, brings the matter well within the rule laid down in section 94, Branch's Annotated P. C., where many cases are cited holding that a witness may explain any fact brought out which may tend to discredit him. Bruce v. State,
Bill of exception No. 6 sets out appellant's objection to the testimony of Mr. Wardlow, chief chemist of the department of health at Austin, who testified that he received by express in September, 1929, a package from Dr. A. C. Jones of Kingsville, Texas, containing a stomach and a bottle of Sal Hepatica, both of which he examined and found to contain styrchnine in quantities sufficient to produce death. The witness further testified that the results of his analysis he wired to the authorities at Kingsville, and that he made written reports, which we find set out in the statement of facts of date September 16, 1929. Appellant's objection was that there was nothing to show the stomach examined and analyzed was that of deceased, or the bottle the one from which he took the alleged poison. We are of opinion that the objection goes to the weight and not to the admissibility of the testimony. Dr. Jones testified that he removed the stomach from a man named Long at Kingsville, and sent same, together with a dog's stomach and a bottle of Sal Hepatica, by express to Austin in September, 1929, and that he received by mail a report of the analysis and examination of said things from Austin. He testified further that before sending the bottle to Austin he tasted its contents and it was very bitter, — that strychnine and quinine were both very bitter. By another witness who knew deceased, it was shown by the state that witness took a bottle labeled Sal Hepatica from beside the body of deceased and that he gave it to Dr. Jones in the same condition he found it. He testified that he was present when Dr. Jones removed from the dead body of deceased its stomach. We think said stomach and bottle sufficiently identified to *382 justify the admission of Mr. Wardlow's testimony as to the result of his examination.
Appellant as a witness swore that deceased was a maker and drinker of beer; that he frequently got drunk, and was arrested for driving a car while intoxicated; that he assaulted and maltreated her. On cross-examination she testified as follows:
"I said that I married my husband, Jim Long, in 1917. He did not join the army of the United States. He was drafted. He became a soldier. He went from Victoria to San Antonio and to Fort Worth and to Jacksonville, Florida, and to France."
This was objected to. We do not think the admission of this testimony, if error at all, was of such material character as to call for a reversal.
Mr. Branch says in section 344 of his Annotated P. C., with citation of many authorities, that a wide discretion is confided to the trial judge regarding application of the "rule," and that except in clear cases of abuse of his discretion, the action of the trial court in refusing to permit witnesses to testify who violated the rule or who were not put under the rule, will not be revised. Thomas v. State,
As to bills of exception Nos. 9 and 9 1/2 which reflect appellant's objection to the testimony of a witness that he examined the guest register at Midway Camp at Corpus Christi and that same did not show the name of Mrs. J. D. Moore, we observe that testimony of one who has examined a book such as the one in question and is prepared to say what it does not show, is not objectionable as secondary or hearsay. Strong v. State, 18 Texas App., 24; Evans v. State,
Bill of exception No. 11 sets out that state witness Moseley testified that appellant's reputation for being a peaceable law-abiding citizen was bad, but on cross-examination he said that when he spoke of the general reputation of appellant and said it was bad, he had reference to her moral character or reputation for chastity. Appellant moved apparently to strike out all the testimony of the witness. Such motion was correctly denied by the court in as much as the witness had given much other material evidence. *383 If appellant would say that we ought not to hold her bound by the exact language of said bill of exception, we might agree provided the same lenience be accorded the state. The statement of facts shows that after having made the answer upon which appellant predicated her motion to strike out, the witness went further and said he knew the difference between law-abiding and reputation for chastity. Clearly the motion as made and set out in this bill of exception was properly denied.
We see nothing wrong with the form of the verdict which simply found appellant guilty as charged in the first count of the indictment and affixed a penalty. Nor do we think the jury without sufficient facts before them upon which to predicate the verdict of guilty and the punishment fixed. Some of the testimony is disgusting in its details. The illicit love of one person for another has often been held sufficient motive for murder, and has some times caused war. The abundant evidence to support such motive in the instant case, — the form, time and manner of the death of deceased by strychnine poisoning, the identification of appellant as the purchaser of strychnine in a town other than the one in which she lived shortly before deceased was poisoned, her denial of such purchase, the apparent flimsiness of the suggested use of poison by another woman, — seem to leave little, if any, room for doubt of the correctness of the decision of the jury. We have given this case careful consideration and find in same no reversible error.
The judgment will be affirmed.
Affirmed.
Concurrence Opinion
The attitude of a defendant who waives his constitutional right and takes the stand as a witness in his own behalf is well expressed by Mr. Branch in section 147, page 83 of his Ann. P. C. of Tex., and many authorities are cited supporting the text, among them being Huffman v. State, 28 Texas App., 177,
It is apparent from the many holdings of our own court that when a defendant takes the witness stand he subjects himself to all legitimate and proper cross-examination. Whether or not the court erred in requiring appellant to write before the jury at the instance of the state, turns then upon the question as to whether that was proper cross-examination. *384
We quote from Corpus Juris, vol. 22, sec. 888b, as follows: "The person whose handwriting is in question cannot be permitted to write something at the trial and offer the specimen so prepared as a standard. It has been said that the court will not, as a rule, order the person whose writing is in question to write in court at the suggestion of counsel, but it has power to make such an order, in which case the standard so obtained may be used, and the better view appears to be thatwhere a witness has denied what purports to be his handwriting,he may on cross-examination be called upon to write in orderthat such writing may be compared with the disputed writing forthe purpose of contradicting him. Where a signature has beenwritten in open court by the person in question at the requestof the opposite party, the party calling for the writing mayintroduce it in evidence." (Italics as they appear in the above quotation, are ours.)
Upon the complaint made by appellant of permitting the jury for the purposes of comparison to use the writing of appellant made upon the trial with that contained in the druggist's record there appears in Chester v. State, 23 Texas App., 577,
Believing the opinion of affirmance has correctly decided the case I record my concurrence therein in connection with the observations here made.
Dissenting Opinion
Rhodes, a witness for the state, testified that he sold strychnine to a woman whom he had never previously seen and whom on the trial of the case he identified as the appellant. The person purchasing the strychnine had, according to the testimony of Rhodes, inscribed in a book the words, "Mrs. J. D. Moore." Upon the trial, according to the bill of exception, the appellant was forced and compelled to write in the presence of the jury, the following: "Mrs. Maude Long, Mrs. Jim Long, Mrs. J. D. Moore, middle of December."
The writing last mentioned was, over the appellant's objection, introduced in evidence against her and given to the jury for the purpose of comparison with the writing first mentioned above introduced by the state.
In the bill of rights (article 1, section 10, Const. of Texas), it is declared that one accused of crime shall not be compelled to give evidence against himself. When the accused in the present trial became a witness in her own behalf, she waived the right to complain of proper cross-examination. That the scope of the cross-examination is limited is affirmed by all writers on the subject. As to the scope of the limitation, the decisions in other jurisdictions are conflicting to a degree amounting almost to confusion. In many of the precedents in other states the accused was not a witness and for that reason the authorities are not applicable. The same is true of some of the decisions in our own state. It seems clear that a demonstration by an act which tends to self-incrimination is as obnoxious to the immunity guaranteed by the Constitution as one by words. See Ruling Case Law, vol. 28, p. 434, sec. 20; Moore v. State, 87 Tex.Crim. Rep.,
In Turman's case, 50 Tex.Crim. Rep.,
In Martin v. State, 80 Tex.Crim. Rep.,
In Ency. of Evidence, vol. 5, p. 51, are collated many cases holding that the compulsory exhibition of the person of one accused of crime offends against the constitutional guarantee against self-incrimination. The same principle is applicable to footprints. In Moore's case, 87 Tex.Crim. Rep.,
" 'Nor can the accused be compelled to place his foot in a shoe-track found in the vicinity of the crime. His refusal to do so can neither be proved against him nor commented on by counsel, while, generally, if he is forcibly compelled to do so, a witness, who was present at the comparison, cannot testify to the results. But it may always be proved that the *387 accused voluntarily went to the locus in quo and placed his foot in footprints found there and that his foot fitted the footprints perfectly.' "
The demand that the accused experiment in handwriting for the purpose of comparison, not being proper cross-examination, it was not embraced in the waiver of privilege implied by her becoming a witness. The accused, therefore, was not bound to make the experiment, and the court exceeded its power in forcing her to do so.
The opinion of this court in Kennison v. State,
In the present instance, the bill of exception complaining of the action of the court, both in forcing the accused to write and in receiving the result of the experimentative evidence, is very carefully drawn and clearly presents the legal questions arising from the transaction. From the bill, the following quotations are taken:
"The Court states as a fact that when the District Attorney asked the defendant, Maude Long, to write said lines, above set forth, in the presence of the jury, defendant objected because same was improper, was compelling defendant to give evidence against herself, and was, in effect, forcing and compelling the defendant to give evidence against herself, contrary to law and the Constitution of this State, which objection was by the Court overruled, and defendant was by the Court overruled, and defendant was compelled to write said four lines, above set forth, in the presence of the jury."
"The Court overruled all of said objections and compelled the defendant to write said four lines, above set forth, in the presence of the jury; and the Court further states as a fact that he permitted the State to introduce in evidence and exhibit to the jury the said four lines, so written in the presence of the jury; and the Court further states as a fact that he permitted the State to introduce in evidence and exhibit to the jury the said four lines, so written in the presence of the jury, for the purpose of comparison with the poison book of the name of Mrs. J. D. Moore, as above set out; and the Court certifies that all of said proceedings occurred over said objections of the defendant as herein stated, and the defendant duly objected and excepted as to the compelling of the defendant to write said four lines, above set forth, and in permitting the state to introduce them to the jury for comparison with the name of Mrs. J. D. *388 Moore in the poison book, and the defendant objected for all the reasons above set forth."
Article 731, C. C. P., 1925, reads as follows:
"It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath."
In the application of the statute, it usually occurs that there are called either witnesses who are familiar with the handwriting by reason of having seen the alleged writer of the document write, or experts, that is, persons skilled in detecting peculiarities of written documents and qualified to give an opinion with reference thereto.
In the present case, to prove the similarity of the writing of the accused upon the trial and that written in the poison book, the state introduced no witnesses but relied entirely upon the similarity of the two. The appellant, on the contrary, introduced two witnesses who were familiar with her handwriting and who testified that in their opinion the writing in the poison book was not of her making. The writing which she did upon the trial and that in the poison book were given to the jury in order that they might make a comparison thereof. The bill of exception affirmatively states that the jury made a comparison of the handwriting and determined therefrom the identity of the writer of the two.
From the case of Martin v. State, 80 Tex.Crim. Rep.,
In the present instance, the appellant denied that she was the author of the writing in the alleged poison book and introduced witnesses who were familiar with her handwriting and supported her testimony. No experts were introduced to the contrary. Nor was there any testimony of experts to the similarity of the writing made by her upon the trial with that in the book mentioned. So far as the writer has been able to gather from an examination of many cases, the procedure mentioned is without parallel. As above stated, in the cases in which writings have been delivered to the jury for comparison there was evidence by experts in handwriting who were cross-examined upon the trial touching their reason, their experiences and the facts upon which they based their identity of the writings. It seems anomalous to put the liberty of a citizen in jeopardy based upon the identity of handwritings under the circumstances revealed by the record of the present appeal. The only precedents *389
touching the analogous facts which have come to the writer are those cited above, namely, Chester v. State, 23 Texas App., 577,
The bill of exception shows that the appellant wascompelled to perform the physical act of writing certain words in the presence of the jury; that she write them against her will and opposed the procedure by prompt and proper objection. The words were intended for use by the state as incriminating evidence against the appellant and were so used against her will and in opposition to her objection that she was protected against such procedure by the bill of rights. So far as the experience and observation of the writer extend the procedure is novel. There are cases in this state in which the accused has performed physical acts in the presence of the jury, which cases were affirmed because the acts were done by consent or without sufficient objection. Those cases, as suggested above, indicate that if there had been proper objection, it would have been sustained. In no case coming to the attention of the writer has it appeared, as it appears in this one, that the accused on trial was forced or compelled to do a physical act, the result of which was used on the trial for the purpose of incriminating the accused.
In construing bills of exception, it has been uniformly held that the certificate of the trial judge showing the facts on which the ruling was made is conclusive. See Branch's Ann. Tex. P. C., sec. 217; Vernon's Ann. C. C. P., vol. 2, art. 667, note 40; also Bank v. State, 95 Tex.Crim. Rep.,
The writer is of the opinion that the judgment should be reversed and the cause remanded.
Addendum
In the present case, the accused was charged with administering poison to her husband. She testified and denied her guilt. There were some forty witnesses heard upon the trial. The typewritten report of the evidence covers some 280 pages. The evidence was wholly circumstantial. One of the most important circumstances upon which the state relied were certain words written in a book at the time some poison was sold by a druggist. Appellant denied the writing. She introduced witnesses who declared that it was not the handwriting of the accused. Witnesses were introduced to support the theory of the state that the motive for the homicide was the infatuation of the appellant for a young boy. This was controverted. In making up their verdict, the jury had before them this mass of verbal testimony and documentary evidence. It was upon the evidence so introduced before the jury that the law demanded that they must form their verdict.
Private counsel for the prosecution was an eminent lawyer and a distinguished citizen. He knew the jurors. He deserved and had their respect and confidence. He said to them: "I tried this case twice. I had to convince myself, beyond a reasonable doubt, that this lady was guilty beyond a reasonable doubt, before I could consent to help the State."
How was he thus to convince himself? How would the jury view his statement? If, in their deliberation, they were in doubt touching the conflict of testimony, the extent if any, to which they placed reliance upon the statement of counsel that he, by means undisclosed, had in advance of accepting employment, ascertained that the accused was guilty, *391 it is not possible to know, nor is it possible to demonstrate, that the recited pre-investigation and pre-judgment of counsel may have had great weight in turning the scale against the accused. That in making the remarks the zeal of counsel carried him beyond the limit of legitimate debate and into the domain of testimony, is not open to question. Giving emphasis, as well as repetition, to his announcement, counsel apparently in concluding his argument, said: "If we have convinced you in this case like we have convinced ourselves of the guilt of the defendant, you ought to have no trouble in arriving at a verdict."
Prompt objection was in every instance made to the argument mentioned, and at the request of the appellant, the jury was by the court instructed to disregard the remarks, all of which is shown in appellant's bill of exception. Appended to the bill is the following statement by the trial judge: "The trial court finds as a fact that Private Prosecutor Crenshaw has long resided in Kleberg County and was personally acquainted with the members of the jury before whom the case was being tried and further finds that he is a lawyer of distinction and prominence in Kleberg County."
The impropriety of counsel in argument putting before the jury his opinion of guilt or innocence of accused on trial has been declared repeatedly and consistently, as is reflected from the opinions of the court from the beginning of its history. Illustrative, are Habel v. State, 28 Texas App., 588,
In the Michigan case above referred to, the court declined to withdraw the objectionable expressions. We have found no reported case in which the opinion of counsel expressed to the jury was couched in similar language to that employed in the present case. It must be admitted that *392 it went further than a mere expression of opinion based upon facts developed before the jury. It carried with it the expression of an abiding conviction of appellant's guilt, based upon pre-investigation by counsel. Such an opinion would or would not have weight with the jury in proportion as they did or did not have confidence in the judgment of counsel giving the opinion. In a case where the issue of the guilt or innocence of the accused was closely drawn, it might sway the balance against the accused. Necessarily, the effect of such opinion could not be demonstrated, and would be speculative. Whether the effect could be withdrawn by prompt action of the court, as was attempted in this instance, is likewise speculative, depending upon the case in its entirety.
By a plea as authorized by the statute, article 776, C. C. P., 1925, the appellant sought a supended sentence. On the issue the state called the sheriff of Kleberg county, who testified in his direct examination that he was acquainted with the general reputation of the accused in Kingsville and Kleberg county for being a quiet, law-abiding citizen, or the contrary, that such reputation was bad. From the bill the following is quoted: "Whereupon, on cross-examination the said Moseley testified that the defendant had never been indicted for any offense, no complaint had ever been filed against her for violation of any law, and that the defendant had never been arrested prior to this offnse; and said witness further testified that when he spoke about the defendant's general reputation and said that it was bad, that he had reference purely to her moral character or reputation for chastity."
The appellant, at the time, sought to have the testimony of the witness excluded for the reason that its inadmissibility was shown by his cross-examination. The withdrawal of the testimony of the sheriff on the ground stated was sought and refused by the court, to which exception was reserved. It is clear, we think, that the sheriff was not qualified to give an opinion with reference to the general reputation of the accused for peace and quietude. It became manifest that he did not know such reputation but that he had in mind the reputation of the accused for morality and virtue.
The court overruled the appellant's objection and let the testimony as outlined go to the jury. In the light of the testimony of the sheriff and the procedure disclosed in the bill, the ruling of the court carried the implication to the jury that the general reputation of the accused for moral character and chastity was a relevant matter to be considered upon the issue of a suspended sentence, and the testimony of the sheriff, while lacking in knowledge of the general reputation of the accused for peace and quietude, was qualified to state the opinion that her reputation for chastity was bad, and that the testimony of the sheriff to the effect stated was a proper subject for the consideration of the jury, both on the merits of the case and the question of a suspended sentence. That the *393 ruling of the court in refusing to exclude the sheriff's testimony in toto was error, no doubt is entertained. Bearing in mind the nature of the case before the jury, namely, that it was contended by the state that the appellant poisoned her husband to the end that she might gratify her lust arising from her infatuation for another man, the testimony in question was capable of use by the jury upon the issue of guilt and was calculated to impair her defense and augment the strength of the state's case on the merits of the prosecution.
Dealing with the application for a suspended sentence, in article 778, C. C. P., 1925, it is said: "The court shall permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence."
From Texas Jurisprudence, vol. 12, p. 749, sec. 373, the following is quoted: "The reputation contemplated by the statute is the general reputation of the accused for being a peaceable and law-abiding citizen in the community in which he has lived."
In support of the text, the following precedents are cited: Skelton v. State, 106 Tex.Crim. Rep.,
Neither of the matters to which reference is made above was discussed at any length in the original opinion. Attention of the court was pointedly drawn to them in the appellant's motion for rehearing. Our re-examination of the record in the light of the motion, forces the conclusion that the remark of counsel, notwithstanding the attempt of the court to withdraw it, was harmful and that the action of the court in refusing to withdraw the testimony of the sheriff from the consideration of the jury constituted error that cannot be regarded as harmless, but, on the other hand, was likely to injure the accused and deprive her of a fair and legal trial to which she is entitled under the law.
The other complaints in the motion are overruled.
The motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
