Bailey v. State

Decided January 24, 1912

Court of Criminal Appeals of Texas · decided 1912-01-24

1. —Murder—Evidence—Declarations of Defendant—Post Cards—Motive. Where, upon trial of murder, the State claimed that defendant’s motive in committing the alleged homicide was to secure the life insurance on his wife’s life, and that he indiscriminately mingled arsenic in coffee of which his wife, the deceased, and others drank, and the case was one of circumstantial evidence, there was no error in admitting testimony that the defendant had proposed to write to some women who were advertising for husbands and that thereupon he received a number of post cards from them which were also admitted in evidence. 2. —Same—Evidence—Identification. Upon trial of murder, by mingling arsenic with coffee, there was no error in admitting the testimony of a druggist that he had sold, about a week before the poisoning, some commercial arsenic to a person whom he could not identify, but whom he described, the testimony of the State showing that defendant was in the town where the arsenic was sold about the time it was ' sold to the man whom the witness described, and which description corresponded' somewhat with defendant; it having also been shown that defendant made the coffee in which similar arsenic was found. 3. —Same—Evidence—Voluntary Statement of Defendant—Grand Jury. Where, upon trial of murder, it was shown that the defendant made a voluntary written statement before the grand jury after he was suspected of the murder, and which was with reference thereto, the same did not come within the scope of the statute relating to extra judicial confessions- and was admissible in evidence, he having been duly warned. 4. —Same—Evidence—Expert Analysis—Arsenic. Where, upon trial of murder, the defendant objected to the expert analysis made of the mixture in which arsenic was contained and of which deceased had drank and died, on the ground that it was not shown that the mixture had been delivered to the chemist who had made the analysis; and it appeared that the testimony showed that it was the identical mixture or coffee from which deceased drank and from which she died, there was no error. I .me—Imputing Crime to Another—Evidence. Where, upon trial of murder, the question asked defendant’s witness corroborated the State’s witness and did not in any way impeach his testimony or tend to connect another with the crime, there was no error in excluding it. 6. —Same—Evidence—Harmless Error. Where, upon trial of murder, the question asked a State’s witness whether his sympathies were not entirely with the defendant, etc., which he answered in the negative, while probably improper, was harmless error, if any. There was no reversible error. 7. —Same—Evidence—Habits of Defendant. - Where, upon trial of murder, the theory of the State was that the defendant had poisoned the deceased in an attempt to poison his wife to get the insurance on her life, there was no error in admitting testimony that defendant had said that he had collected certain insurance money on account of an accident; as this would tend to show that defendant had a mania for insurance money; the case being one of circumstantial evidence. 8. —Same—Verdict—Practice—Statutes Construed. Upon trial of murder, there was no error in -the action of the court that when the jury returned a verdict which did not state the degree of murder in retiring them to find the degree of murder and so state in their verdict; whereupon' the jury returned a verdict of murder in the first degree. Article 712, Penal Code. 9. —Same—Motion for New Trial—Bill of Exceptions. A bill of exceptions, presenting the evidence on a motion for new trial, must be filed during the term of court, and bills presented subsequent to the adjournment of court, can not be considered on appeal. Following Probest v. State, 60 Texas Crim. Rep., 608. 10. —Same—Charge of Court—Express and Implied Malice—Murder by Poison —Statutes Construed. Under article 711, Penal Code, all murder committed by poison is murder in the first degree, and where the indictment charged such homicide, and the evidence tended to sustain it, although it appeared that defendant intended to poison another and not deceased, but that he showed a reckless disregard of human life, there was no error in the court’s charge that murder in the first degree in this case could be predicated upon either express or implied malice. Following Tooney v. State, 5 Texas Crim. App., 189, and other cases. 11. —Same—Charge of Court—Weight of Evidence—Words and Phrases. Where, upon trial of murder, by means of arsenic poisoning, the court instructed the jury that if they believed from the evidence, beyond a reasonable doubt, that such poisoning was the act of another and not that of the defendant, especially naming defendant’s wife, to acquit defendant, the same was not on the weight of evidence, and the omission of the words “wife of defendant” after her name could not have misled the jury. Following Blocker v. State, 55 Texas Crim. Rep., 30. 12. —Same—Charge of Court—Confession. Upon trial of murder, where defendant’s voluntary statement was introduced by the State, there was no error in the court’s charge that such statement must be taken together, and that the State is bound by all of it, unless the State has shown by the evidence that it is untrue. Following Combs v. State, 52 Texas Crim. Rep., 613, and other cases. 13. —Same—Limiting Evidence—Charge of Court. Where, upon trial of murder by arsenic poisoning mingled with coffee, the evidence showed that defendant’s wife and others also drank of the coffee from which deceased died, and that they became very ill, the court properly limited such evidence to the intent of defendant. 14. —Same—Charge of Court—Arsenic Poisoning. Where, upon trial of murder by means of arsenic poisoning, the evidence was clear that the death of deceased was occasioned by arsenic, there was no error in failing to instruct the jury that if deceased came to his death from lead or zinc poison, to acquit. 15. —Same—Jury and Jury law—Opinion of Juror. Where, upon trial of murder, the defendant claimed after conviction that one of the jurors had expressed an opinion as to the guilt of defendant, and it appeared that his counsel was informed of this fact before the jury retired to consider their verdict, but raised no objection until after the verdict was rendered, there was no error; besides, this issue was tried and decided by the court adversely to defendant, and the bill of exceptions was not filed until after adjournment. 16. —Same—Hewly Discovered Evidence—Result. Where the alleged newly discovered evidence attempted to show that defendant's wife, some two years before the homicide, said that she had a little arsenic in her possession, but it appeared from the record that defendant was with his wife on this occasion, it was not newly discovered evidence; besides, the record showed that defendant’s wife drank of the alleged poisoned coffee which very nearly caused her death, etc., and that said alleged newly discovered evidence would probably not have produced a different result upon another trial. ° 17. —Same—Hewly Discovered Evidence. Where part of the alleged newly discovered evidence would not have been admissible, and a portion of it was such that defendant must have had knowledge of it, and still another portion was simply of an impeaching character, there was no error in overruling a motion for new trial on this ground. 18. —Same—Sufficiency of the Evidence. Where, upon trial of murder by means of mingling arsenic in coffee, the evidence sustained the conviction, there was no error. 19. —Same—Confessions—Statutes Construed. Evidence voluntarily given before a grand jury, in an effort to prevent an indictment, does not come within the provisions of article 790, Code Criminal Procedure, as amended. 20. —Same—Charge of Court—Confessions. Where, upon trial of murder, the State introduced a written statement made by the defendant before the grand jury, there was no error in the court’s charge that the whole of said statement and evidence of the defendant as given before said grand jury and admitted in evidence, must be taken together and that the State is bound thereby, unless it has shown the same to be untrue, and that such statements are to be taken into consideration in connection with all the other facts and circumstances of the case. Overruling Wallace v. State, 66 S. W. Rep., 1102. Approving Pratt v. State, 59 Texas Crim. Rep., 635. 21. —Same—Charge of Court—Limiting Testimony. Where, upon trial of murder by means of arsenic poisoning, the evidence showed that defendant’s wife and others besides the deceased suffered injury from drinking the coffee in which the arsenic was mingled, there was no error in the court’s charge limiting said testimony to the question of defendant’s intent. Following Thornley v. State, 36 Texas Crim. Rep., 118, and other cases. 22. —Same—Bill of Exceptions—Statement of Facts—Motion for Hew Trial. When evidence is taken on motion for new trial and is preserved by bill of exceptions which is filed after adjournment, it stands on the same footing with a statement of facts containing such evidence which is filed after adjournment, and neither can be considered on appeal. Following Black v. State, 41 Texas Crim. Rep, 185. 23. —Same—Circumstantial Evidence—Rule Stated. Where the case is one of circumstantial evidence, the mind seeks to explore every possible source from which light, however feeble, may be derived, and no definite line of demarkation can be drawn with regard to facts proximate and remote. Following Noftsinger v. State, 7 Texas Crim. App., 301, and other eases. 24.—Same—Practice on Appeal—Rehearing. Matters which are not raised by bill of exceptions or ground in the motion for new trial can not he considered in a motion for rehearing. Following Flournoy v. State, 57 Texas Crim. Rep., 88, and other cases.

Cited by 2 later decisions — most recently February 1919

2 state decisions

Key passage — most relied on by later courts

““It is thus seen that all which relates to filing bills of exception and statements of fact is in the same section and is upon the same footing.””

quoted by 1 later decision, including St. Louis, B. & M. Ry. Co. v. Vick

Relies on Cooper v. State · 36 Tex. Crim. 125 - Martin v. State · Ballew v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1912-01-24

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¶1This case was affirmed at a former day of this term, and appellant has filed a lengthy motion for a rehearing, and, among other things, contends that the court was in error in holding that the statement made by appellant before the grand jury did not come within the provisions of article 790 of the Code of Criminal Procedure as amended by the Legislature in 1907. It has been so held in an unbroken line of decisions of this court, since the amendment of the Act in 1907, Judge Davidson holding in the case of Pierce v. State, 54 Tex.Crim. Rep., rendered in October, 1908: "With reference to his evidence before the grand jury, it is shown that it was at his request, and that he went voluntarily before that body to make a statement and did make it, and that it was reduced to writing and signed by him. We think this was admissible under our decisions. The question has been discussed frequently, and this character of evidence given before a grand jury has been held to be admissible. Grimsinger v. State, 44 Tex.Crim. Rep.; Wisdom v. State, 42 Tex. Crim. 579. These cases collate the authorities, and discuss the question fully. See, also, Branch's Crim. Law, section 227. It is thus seen that evidence voluntarily given before a grand jury, in an effort to prevent an indictment, does not come within the provisions of article 790, supra.

¶22. Appellant also urgently insists that the charge of the court in instructing the jury: "The State has introduced in evidence the testimony of the defendant given before the grand jury of Erath County, and I charge you that the whole of said statement and evidence of the defendant as given before said grand jury and admitted in evidence before you, is to be taken together, and the State is bound by all of it unless the State has shown by evidence it to be untrue. Such statements are to be taken into consideration by the jury as evidence in this case in connection with all the other facts and circumstances of the case," is error. Appellant insists this charge is upon the weight to be given the testimony, and cites us to the case of Wallace v. State, 66 S.W. Rep., 1102. That case supports the contention of appellant, but it stands alone in our decisions, and was specifically overruled in the case of Pratt v. State,59 Tex. Crim. 635, wherein it is shown that the decision in the Wallace case was contrary to all the other decisions of this court, and the charge given is not subject to the criticism contained in the motion for new trial. See that case for citation of authorities.

¶33. Appellant insists that this court erred in holding that the trial court did not err in limiting the effect of "the evidence to the effect that Mrs. Ella Bailey and Henry Alexander suffered injury, if any, from the effects of the coffee may be considered by you in passing upon the intention with which the defendant acted in mixing and mingling *17 said arsenic with said coffee, if he did so, but for no other purpose. The defendant is not on trial for any injury to Mrs. Ella Bailey, nor to Henry Alexander, and can not be convicted for the same." He says: "The court did not cite any authorities in support of its opinion. We thought this principle was so well established in the law as to need no citation of authorities, but see Thornley v. State, 36 Tex.Crim. Rep.; Saldiver v. State, 55 Tex.Crim. Rep.; Gardner v. State, 55 Tex. Crim. 394; Wheeler v. State, 23 Texas Crim. App., 598; Burks v. State, 24 Texas Crim. App., 332; Barnes v. State, 28 Texas Crim. App., 29; Hanley v. State, 28 Texas Crim. App., 375; McCall v. State, 14 Texas Crim. App., 353; Martin v. State, 36 Tex. Crim. 125; Riley v. State, 29 S.W. Rep., 40. See, also, sec. 366, Branch's Crim. Law, where the rule is laid down that the testimony was admissible, but it would have been error for the court to have failed to limit the purpose of it.

¶44. Appellant also insists that the court erred in not considering the defendant's bill of exceptions No. 22 in regard to testimony heard on motion for new trial, and which was filed after term time, claiming that a different rule prevails when evidence taken on motion for new trial is preserved by bill of exception, from that when preserved in a statement of facts. Section 7 of the official stenographers' act reads: "When an appeal is taken from the judgment rendered in any cause in any District or County Court, the parties to the suit shall be entitled to and they are hereby granted thirty days after the day of adjournment of court in which to prepare or cause to be prepared and to file a statement of facts and bills of exception." It is thus seen that all which relates to filing bills of exception and statements of fact is in the same section, and is upon the same footing, and this court held in Black v. State, 41 Tex.Crim. Rep.: "It is evident to our minds that these statutes refer exclusively to statement of facts adduced onthe trial of the case itself, and have no application to issuesof fact formed on grounds set up in the motion for new trial, except where the statute makes provision for filing of papers after the adjournment of court, these papers must all be filed during the term." This has been adhered to in all cases since the rendition of that opinion, and was so fully discussed by us in the case of Knight v. State, recently decided, we do not deem it necessary to further mention the matter, but refer to that case for citation of authorities.

¶55. The only other ground in the motion relates to the testimony of Ulpin Holt, who testified that about a week before the homicide he sold to a young man not quite so tall as himself a nickel's worth of commercial arsenic, although not able to identify appellant as the person. As stated in the original opinion, this is a case of circumstantial evidence, and this testimony when followed by the testimony that appellant was in town about that time, and was a young man not so tall as Holt, and that the arsenic found in the coffee was the kind sold by *18 Holt, and the further fact that appellant made the coffee, the testimony was admissible, to be given such weight as the jury deemed proper. Ballew v. State, 36 Tex. 98; Noftsinger v. State, 7 Texas Crim. App., 301; Preston v. State, 8 Texas Crim. App., 30; Early v. State, 9 Texas Crim. App., 476; Simms v. State, 10 Texas Crim. App., 131; Washington v. State, 8 Texas Crim. App., 377; Means v. State, 10 Texas Crim. App., 16; Green v. State, 12 Texas Crim. App., 51; Pogue v. State, 12 Texas Crim. App., 283; Langford v. State, 17 Texas Crim. App., 445; Bouldin v. State, 8 Texas Crim. App., 335; Cooper v. State, 19 Tex. 450 [19 Tex. 450]. In these cases it being held that in a case depending upon circumstantial evidence, the mind seeks to explore every possible source from which light, however feeble, may be derived, and in such case it is peculiarly proper that the jury should have before them every fact and circumstance, however slight, which might aid them in coming to a satisfactory conclusion as to the guilt or innocence of the accused. And in the case of Sims v. State, 10 Texas Crim. App., 131, this court held that in cases of circumstantial evidence no definite line of demarcation can be drawn with regard to facts proximate and remote. The test is: Do they tend to throw light upon the transaction?

¶66. Such matters as are sought to be raised in this motion not based on any bill of exception or ground in the motion for new trial can not be considered by us. Flourney v. State,57 Tex. Crim. 88; Eckerman v. State, 57 Tex.Crim. Rep.; Holmes v. State, 55 Tex.Crim. Rep., 116 S.W. Rep., 571; Reyes v. State, 51 Tex.Crim. Rep.; Wilson v. State,52 Tex. Crim. 173; Pena v. State, 38 Tex.Crim. Rep., and cases cited in Ryan v. State, 142 S.W. Rep., 878, and Knight v. State, decided at this term of court.

¶7The motion for rehearing is overruled.

¶8Overruled.