HENDERSON, Judge.
Appellant was convicted of being an accomplice in murder, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.
It appears from the record that Walter Holmes was the husband of one Carrie Holmes. They lived together as husband and wife a number of years, and had several children. During the last few years prior to the homicide, -they lived near the village of Santa Anna, in Coleman County. Appellant was a widower, and lived about 300 or 400 yards from them, and in view from the rear of the Holmes residence. The relations of deceased and his wife appear to have been agreeable until about a year prior to the decease of the former, about which time it appears that an attachment sprang up between her and appellant, which resulted in illicit intercourse between them. This was carried on for some time, until at length deceased became suspicious of his wife. On Tuesday morning, December 1, 1896, he called his wife into the room, and accused her of being too intimate with appellant. She finally admitted the fact, and told him that she loved appellant, and that he loved her. On request she produced certain letters from appellant to her, under promise that deceased, after reading them, would return them to her. He read two letters, and returned them to her, but, on reading the third, he retained it. She became very angry, and threatened him if he did not give it back to her. This deceased refused to do, but at once got in his buggy, took his gun with him, and proceeded to the town of Coleman, and there conferred with his lawyer, Mr. Sims, exhibiting the letter to him. Sims advised him not to return to his home, and not to eat a meal in the house again; that his life would be in danger if he remained at home. On the same morning, appellant was informed by Mrs. Carrie Holmes of what had occurred, and he was warned to beware of her husband. Appellant left on the same morning, going to the little town of Glen Cove, about fifteen or twenty miles distant, and remained there until the latter part of the week, ostensibly organizing a lodge of the Woodmen of the World. Deceased returned to his home on that evening, and slept with his wife that night. He and his wife had some conversation about the matter of her infidelity, and it seems there was something like a reconciliation between them. He did not return the letter to his wife. After he had gone to sleep, his wife got up, found the letter in his pocket, and destroyed it. On Wednesday the deceased was taken violently ill, and he continued so until the following Tuesday, when he died. His wife waited upon him during that time, and he also had the attendance of other persons. Physicians were also called in, and during his illness there were several consultations between the physicians as to his ailment. It does not appear that the physicians were able to determine the nature of his illness; nor does the record indicate any apprehension on their part that deceased was suffering from poison. Appellant returned from Glen Cove on Saturday, before the death of the deceased, but it does not appear that he ever went into the presence of the deceased before his death. He was seen on Sunday or Monday, however, in the rear of the premises of
the deceased, about his barn, and under circumstances that indicated a conference between him and the wife of the deceased. During the burial service, some circumstances occurred which indicated that some suspicion then existed as to the cause of the death of the deceased. The conduct of appellant and Mrs. Carrie Holmes shortly after the death of Holmes became suspicions. On the evening of the burial, Dr. Hayes, a brother-in-law of deceased (after the burial), rode in the buggy with the wife of deceased on her way home, and some conversation occurred between them with reference to deceased. He subsequently had several interviews with her in rgard to his death. On December 12th an interview occurred between Hayes and Mrs. Carrie Holmes at his house, in the hearing of Hayes’ wife and one Phillips, who was stationed outside of the house at the window. Mrs. Holmes, in this interview, in effect admitted the illicit relations between herself and appellant, and also that she had poisoned the deceased, but refused to inculpate appellant therein. Subsequently to this, about the 8th of February, Dr. Hayes saw appellant at his office, in the town of Santa Anna, and on the evening of the same day interviewed him by appointment at his (Hayes’) house, in regard to the cause of the death of the deceased. During all this time Hayes was busy collecting evidence in the case. On the 20th of February he caused the body of the deceased to be exhumed; and a portion of the intestines, together with a portion of liver and lungs, were placed in a vessel and securely fastened, and sent to a chemist at Fort Worth, to be analyzed and tested as to poisons. Professor Chase, of Fort Worth, finished the analysis of the contents of the stomach on March 5th; and his' testimony shows that the stomach contained a large quantity of arsenic,—“in short, the liver, stomach, and duodenum showing altogether about three and three-quarter grains of metallic arsenic, or five and a fraction grains of white arsenic.” The testimony shows that the ordinary fatal dose of this drug is about two grains. Mrs. Holmes and appellant were indicted for the -crime on the 27th of February, 1897, and were both arrested within a ■short time thereafter and placed in jail. The indictment contains two •counts,-—one charging appellant as a principal in the homicide, and the -other charging him as an accomplice. The court only submitted the question of accomplice to the jury. A great deal of the testimony on the trial relates to the principal in the homicide, alleged to be Mrs. Carrie Holmes. This was limited in the court’s charge to that purpose. The testimony connecting appellant with the offense, aside from certain testimony in the nature of confessions, is purely circumstantial. There are thirty-two bills of exception and twenty-seven assignments of error in the record; but we will only discuss such as we deem material to a proper disposition of this case.
Appellant assigns as error the action of the court in regard to the impahelment of the jury. It seems that Parker had stated on his voir dire that he had an opinion, formed from having heard his uncle, who was a member of the grand jury that found the bill of indictment, express his opinion as to the guilt or innocence of the appellant. The bill fails to
show that the grand juror stated to the juror any fact in regard to the case; and the bill further shows that the juror stated that he could give appellant a fair and impartial trial, regardless of any opinion that he might entertain. So far as we are advised, whatever opinion the juror may have entertained was.formed from a purely hearsay source. He had talked with no witness, had heard no testimony, and he was clearly a competent juror, under the rule laid down by this court. See Suit v. State, 30 Texas Crim. App., 319; Adams v. State, 35 Texas Crim. Rep., 285; Trotter v. State, 37 Texas Crim. Rep., 468. It is not attempted to be shown that the juror Templeton, who was subsequently taken on the jury, after appellant had exhausted his challenges, was .not a fair and impartial juror.
Appellant strenuously urges that the court committed a reversible error in permitting the State to prove by the witnesses Hayes and Stanlee a conversation between them and appellant at the residence of Dr. Hayes on the 8th of February, 1897, said testimony being substantially as follows: Witness, told defendant that he (Hayes) and Stanlee wanted him to make a full statement of his and Mrs. Holmes’ connection from beginning to end. In reply, he asked Hayes if he would believe him; to which Hayes replied that he would believe him if he told the truth, but that, if he did not tell the truth, he would not believe him. Appellant then stated that his and Mrs. Holmes’ relations began last Hovember, a year ago; that she wrote him the first letter, but he paid no attention to it, and that she wrote him a second letter, and he answered it; that he advised her it was wrong. Witness then asked him why he kept it up, to which he replied that she kept on and was so persistent that it became so irresistible that he could not help it, and that he got to loving her. Witness then asked him if that was all, and he said, “Yes; that is all.” Witness then said, “How about the twenty-year plan?” to which appellant replied, “That is so; we agreed to marry, and wait for one another twenty years if necessary;” but he told her that Walter Holmes was a stout, robust man, and that he would likely outlive both of them. Witness then asked him about their marriage, and he replied they were to be married on the 17th of December next, if circumstances would permit. Witness then asked him, “What circumstances would prevent if? You are a widower and she a widow.” Appellant replied that he did not know. Witness then asked him how he knew Holmes had his gun, and was going to kill him; and he said Mrs. Holmes told him. He was then asked when she told him, and he said, "The day before Holmes got sick.” Witness then said to him, “Look here, you planned this whole thing, and are a murderer ; and I do not understand how you could have associated with this old man [referring to Dr. Stanlee], and been with him in his office as you have, and be guilty of such a thing;” to which appellant made no reply. Witness then told him he could go> “but asked him to try not to meet us any more on the streets, and to avoid meeting either of us; that we do not want to see you;” and he said he would try to do so as much as he could. The bill of exceptions shows that this testimony was admitted
under the following circumstances: On the morning of that day the witness Hayes had called defendant into his and Dr. Stanlee’s office, to have a settlement with him in regard to some transaction. That Dr. Stanlee was the father-in-law of Hayes. Witness used very abusive language to defendant, but said nothing to him about the death of Walter Holmes. That he (Hayes) was armed with a pistol at the time, and, while the altercation was going on, he attempted to close the door of the office. That, in doing so, Hamlin ran against him in getting out of the door. When he did this, Hayes’ pistol fell to the floor, and was not picked up or used during the fight. That, as defendant ran against him, Hayes caught him, and they both went out of the door on the sidewalk, and fell in the street. Hayes got defendant down, and was beating him with hig fists. That A. C. Weaver came up to where the parties were, and started to interfere; and Dr. Stanlee, who was standing near by, would not permit him to do so. Defendant cried for help, and Hayes continued to beat him until other parties came and pulled him off. Hayes went into his office, and defendant went into the drugstore to have his bruises attended to. Hayes followed defendant into the drugstore, and again violently abused him. That while they were in the back end of the drugstore, and in Dr. Matthews’ office, Hayes and Dr. Stanlee told defendant they wanted to have a talk with him, and requested him to come to Hayes’ house that evening for that purpose. They told him they would not hurt him, and assured him, upon the honor of a man, that he would not be hurt if he came, and told him, if he did not come, he (Hayes) would make him (defendant) hard to catch. Defendant promised he would come to the house of Hayes; and he came about
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o’clock that evening, bringing with him his two little boys, aged 14 and 16 years respectively. Said boys remained on the porch of the Hayes house, while defendant went into the house at the request of said Hayes. Dr. Stanlee was sent for, and, after he came, the conversation above set out occurred. Appellant contends that said statements were not freely and voluntarily made by appellant, but were made under duress or fear superinduced by the conduct of Hayes and appellant’s environments at the time. It is not pretended here that appellant was under legal arrest or in custody of an officer, nor that Hayes and Stanlee had any authority to restrain or offer any promise or inducement .to appellant. The objections to the statements made are solely based on the antecedent circumstances leading up to this meeting, in connection with the surroundings or environments of the parties at that time.
We understand that the same rule is here applicable which applies to a confession at common law (if what was said by appellant at the time can be called a confession). The rule at common law is simply to the effect that it must appear that the confession was freely and voluntarily made before it will be received as evidence against the accused. And confessions were equally as admissible if the party was under arrest or in jail as if made under other circumstances; there being no objection as to the admissibility of the testimony, unless, perhaps, the courts would
more closely scrutinize a confession made by a party under arrest or in jail, in order to ascertain if same was freely and voluntarily made. Our statute, however, changes this rule; and, before a confession made by a party who is under arrest or in jail is receivable in evidence, it must appear that same was freely and voluntarily made after the party had been warned or cautioned by the officer that anything he might say would be used in evidence against him. As stated above, the statements or confessions of the party here were not made while he was under arrest or in jail; but it is claimed that he was under such duress at the time as shows that his said statements were not freely and voluntarily made. The rule at common law, and in most of the States, is that the admissibility of confessions is a question solely for the court. After such admission, however, it is competent for the defendant to introduce before the jury all the testimony tending to show that the confessions were not freely and voluntarily made; and where testimony of this character is introduced, either for the State or the defendant, it is the province of the court to instruct the jury that they can look to all the facts and circumstances in evidence in order to determine the degree of credit thejr will attach to the confessions. See note to Daniels v. State, 78 Ga., 98, 6 Am. St. Rep., 242; Johnson’s Case, 2 Lead. Crim. Cas., 570; Rice v. State, 47 Ala., 38; Young v. State, 68 Ala., 569; State v. Freeman, 12 Ind., 100; State v. Dildy, 72 N. C., 325. And this seems to have been the rule formerly in this State. See Carter v. State, 37 Texas, 362; Cain v. State, 18 Texas, 387. But more recently our courts seem to have adopted the rule, where there is testimony tending to show that the confession is not admissible, as where there is any evidence to the effect that the party was under duress or in jail, and not properly warned after the admission of such testimony by the court, to instruct the jury with regard to such confession that if they believed it was made under duress, or when the party was in jail and not properly warned, and that such confession was not freely and voluntarily made, they would exclude it altogether from their consideration; thus enabling the jury to pass upon the question of law,—that is, the admissibility of the confession. See Speer v. State, 4 Texas Crim. App., 474; Rains v. State, 33 Texas Crim. Rep., 294; Sparks v. State, 34 Texas Crim. Rep., 86; Carlisle v. State, 37 Texas Crim. Rep., 108. And this seems to accord with the practice in Georgia and Massachusetts. See Holsenbake v. State, 45 Ga., 44; Stallings v. State, 47 Ga., 572; Mitchell v. State, 79 Ga., 730; Bailey v. State, 80 Ga., 359; Com. v. Cuffee, 108 Mass., 285; Com. v. Nott, 135 Mass., 269; Com. v. Smith, 119 Mass., 305; Com. v. Preece, 140 Mass., 276. However, whether the jury excluded the evidence altogether, if they determined that it was not freely and voluntarily made, or disregarded it, is the same in practical effect. We quote from Mr. Bice as follows: <rWhen a confession is offered in evidence, the question whether it is voluntary is to be decided primarily by the presiding justice. If he is satisfied that it is voluntary, it is admissible; otherwise, it should be excluded. When there is conflicting testimony, the humane practice is for the judge, if he decides that it is admissible, to
instruct the jury that they may consider all the evidence, and that they should exclude the confession if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant.” See Rice Crim. Ev., sec. 308.
It will be remarked in this connection that the judge trying this case instructed the jury, in effect, in accordance with the above; so the sole question for our determination is whether the circumstances surounding the declarant Hamlin at the time he made the confessions were of such a character as to show that he was at the time under duress, such as to indicate that his statement was not freely and voluntarily made, and in fact was not the truth. Of course, the surrounding circumstances can always be looked to by the court primarily to determine whether or not there was duress; secondarily, these surrounding circumstances can be looked to by the jury, under instructions from the court, in order to determine what degree, of credit they will give the confession, or whether they will regard it at all. See Rice’s and Young’s Cases, supra; Thomas v. State, 35 Texas Crim. Rep., 180.
How, do the facts and circumstances in evidence surrounding appellant at the time show that he was under such duress at the time as to render his declarations or statements absolutely inadmissible ? The only circumstances tending in this direction are the fight he had with Hayes in the morning, and his request to appellant, a little while after he had knocked 'down and beat him, to come to his house that evening, that he and Stanlee wanted to talk to him (this being coupled with the threat that, if he did not come, he would make him hard to catch), and the further fact that after he arrived at the house that evening, and came in the room, before the interview, Hayes closed the door, and then demanded of him that he make them a full statement of his and -Mrs. Holmes’ connection with the killing of the deceased, Holmes. It may be conceded that Hamlin did not desire to go to Hayes’ house for the interview that evening; yet it does not follow that he was compelled to go. He had ample time afterwards to have invoked the law for his protection if he apprehended trouble should he fail to go, for it was some-four or five hours after the request in the morning before the interview in the evening. And, when he arrived there, it may be also conceded that he did not desire to talk about the cause of the death of Holmes, and did not desire to be questioned in regard thereto. But the circumstances fail to show that any threat was either used against him, or that he was coerced to talk. For aught that appears, what he said was voluntary on his part. Ho arms were exhibited by the parties, and no threat made. He brought his two sons there with him, and at the time of the interview they were on the porch. This view is further manifested from an examination of his conversation at that time. However the statements may be used for the State as more or less incriminative, yet his expressions appear to have been guarded. Indeed, that part of the conversation which was most calculated to prejudice appellant was not what he said, but what Ha3'es said. But we do not understand the bill to raise an objection to what Hayes may have said; nor does the bill raise any objec
tion to appellant’s silence under the questions and remarks of Hayes. It may be conceded, as stated above, that the environments as shown by the evidence raise some question as to whether the confessions or statements of appellant were entirely free and voluntary; but we do not understand that this would exclude the testimony, the rule being that the court is first to determine the admissibility of the confession, and if there are facts and circumstances tending to show that it was made under duress, and was not entirely free and voluntary, that this matter should be submitted to the jury under appropriate instructions. We could cite a number of cases where such evidence has gone to the jury under circumstances of a more serious nature than is here indicated. See Rice’s Case, Young’s Case, and Freeman’s Case, supra. We know of no case where the testimony of coercion was as slight as in this case where the evidence of confession has been withheld from the jury.
Appellant urges as cause for reversal the admission by7 the court in evidence of a certain letter shown to have been written by appellant while in jail, to Mrs. Carrie Holmes, who ivas also in jail, in another cell. The bill substantially shows that the State put the witness Ben Clark on the stand, who testified that he was the jailer of Coleman County; that he had in his custody J. F. Hamlin, who was confined in one cell, and Mrs. Carrie Holmes, who ivas confined in another cell, both under arrest on the charge of murdering Walter Holmes. The witness stated that he warned the defendant Hamlin, after he was put in jail; that he told him that anything he might say or do while confined in jail could.be used in evidence against him; that, after this warning, he saw a letter from defendant to Mrs. Carrie Holmes; that he saw the letter in Mrs. Holmes’ cell; that he knew the defendant’s handwriting, and the letter was in his handwriting. Said letter was, in substance, as follows: “It commenced, ‘Mrs. Holmes, my own dear Nellie.’ It was then a love story, telling her how much he loved her, and how true he had been to her, and in several places asked her not to give him away. In one place, I remember, he said, T have been true to you, my darling, and I want you to be true to me, and not give me away.’ It was signed, Your own Jim H.’ ” All of which, at the time and before the giving in of said testimony, the defendant objected to, for the reasons (1) that defendant, as shown by the statement, of said witness at the time of writing said letter, was confined in the Coleman County jail, upon the charge upon which he is now being tried; (2) he was not warned as required by law to malee said statement admissible; (3) that it was not an admission, statement, or confession to the witness by defendant; (4) it was not a statement or confession freely made by defendant after proper warning. Mrs. Holmes was under duress at the time of the transaction testified to by the witness, and had not been properly warned, so that the same might be properly used against her or the defendant. Which objections were overruled, and the witness permitted to testify as above set out. We are not authorized to refer to the statement of facts to help out the bill of exceptions. McGlasson v. State, 38 Texas Crim. Rep., 351.
It will be presumed that appellant has stated fully the conditions under which said testimony was admitted, and, furthermore, that he has stated the very ground of his objection to the testimony. Appellant says that he was not warned as required by law to make said statement admissible, and that it was not a statement or confession freely made by appellant after proper warning. If we look back to the prior portion of the bill stating the conditions under which the letter, was received, it will be seen that the officer states that he warned defendant after he was put in jail; that he told him that anything he might say or do while confined in jail could be used in evidence against him; that, after this warning, he saw the letter in question. He does not state how long after he gave the warning before he read the letter. For aught that appears, it may have been immediately. At any rate, appellant does not show by the bill, which he was bound to do in order to avail himself of it, that such an interval of time elapsed after the warning and before the witness saw the letter as to suggest that appellant did not at the time have in mind the warning which had been given. He therefore does not bring himself within the rule as laid down in Barth v. State, ante, p. 381. Appellant also says that same was not an admission, statement, or confession made to the witness by the defendant. We know of no rule of law that would require that the statement or confession must be made to the party giving the warning. Indeed, the contrary has been repeatedly held in this State. See Martin v. State (Texas Crim. App.), 41 S. W. Rep., 620. It is said that the statement made—that is, the letter written—was not freely and voluntarily made after warning given. There is no suggestion in the record to sustain this contention. Indeed, it would seem that the letter was written absolutely free from restraint. It was not intended by appellant that it should be seen by the officer, but was intended to influence Mrs. Holmes in her conduct. It would certainly appear, if the circumstances of a case could take a statement of a prisoner out of the statute, that this would be such a one. But it is not necessary to discuss that matter, as we have before seen that the proper warning was given before the letter was written.
Appellant further objects to the introduction of this letter because it was obtained from Mrs. Holmes while she was under arrest. Mrs. Holmes was not on trial, and the statute in this respect does not apply to her. However, if it did, Mrs. Holmes appears to have been warned by the officer.
Appellant further objected to the testimony of. Mrs. Holmes while in jail on the ground that her statements were not freely and voluntarily made; that the officer used both threats and persuasion. The explanation of the court to this bill shows that said testimony, after it was introduced, was subsequently, during the trial, excluded from the jury, and they were instructed not to consider same. If this testimony was improperly admitted, it would appear that this subsequent action of the court was calculated to correct the error. We have looked through the bill, however,
in vain, to find that she made any statement inculpatory of the appellant. When asked in regard to his guilt, she invariably stated that he was innocent.
On the trial, the State introduced the contents of another letter purporting to be from defendant to Mrs. Carrie Holmes. The circumstances attending the introduction of this letter were as follows: On Tuesday morning, December 1st, it appears that Holmes had some conversation with his wife, Carrie, at their house, regarding the defendant, and that she produced three letters which he said were from appellant, Hamlin, to her. Walter Holmes read two of these letters and gave them back to her. He read the third, but retained it, and they had quite an altercation in regard to it. On that day he carried this letter to Coleman, some eight or nine miles from Santa Anna, and there showed it to his attorney, Mr. H. T. Sims. The letter, as testified to by Sims, was substantially as follows : “Dear Carrie: You know how well I love you, and we ought to live for one another. I am willing to wait one, two, five, or ten years, if necessary, but it seems a long time to wait. I noticed at church the other day that he is Avatching us. We Avill have to be mighty careful, or he Avill find out about it. If you will hoist your flag of truce, and he is away, I will be there. I often think of the pleasant times we have had at the [stating two capital letters I can not recall].” It was shown in this connection that Sims read the letter, and advised deceased to place that letter in a secure place, and that he had never seen it since. Sims testified further, “that he was at the burial of Walter Holmes, on Wednesday, and while at the graveyard, before the body was interred, Dr. A. Stanlee (the father of Mrs. Carrie Holmes) introduced said Carrie Holmes to him, with the statement that she wanted to have a talk Avith him (Sims) ; that he and Mrs. Holmes stepped off a feAV steps, and the following conversation occurred: Mrs. Holmes said, 'Well, Mr. Sims, I suppose Mr. Holmes told you all about it.’ And I said, 'All about your family trouble concerning you and Hamlin ?’ She said, 'Yes.’ I said, 'Well, he told me a good deal about it.’ She said, 'Well, it wasn’t as bad as you thought it was.’ I said, 'Mrs. Holmes, if it was as he stated to me, it was pretty bad.’ She said, 'Yon are the only living person that knows anything about it.’ I said, 'Ho,-I am not the only person that knows anything about it.’ We then each looked at Dr. Hayes, AArho was standing near, looking at us; and she said, 'What Dr. Hayes knows about it don’t amount to anything.’ I said, 'I don’t lcnoAV AAdiat Dr. Hayes knows about it, but he is not all.’ She then said again, 'You are the only one that knows anything about it.’ I then said, 'Mrs. Holmes, where is that letter from Hamlin to you that Mr. Holmes showed me?’ She said, 'We got together, made it up, and he forgave ns both, and we burned the letter: it’s in ashes now.’ 'It’s in ashes?’ I said to her; 'Mr. Holmes promised me he would take that letter, and put it in the bank Avith his papers in the vault, and preserve it.’ She said, 'He didn’t do it, but carried it back home, and we burned it.’ ” This letter was only introduced as evidence against Mrs. Holmes, the principal, and was so limited by the charge of the court. We
understand the grounds of objection to the introduction of this letter to be that the letter that Sims read was not sufficiently identified as the letter that deceased obtained from his wife on Tuesday morning. We are of opinion that said letter was sufficiently identified as the letter Walter Holmes obtained from his wife on Tuesday morning. But one letter was alluded to or spoken of by them, arid there was but one letter which deceased and obtained from his wife and read to Sims, and she explicitly told Sims that the letter in question had been burned. If she were on trial, we have no doubt that said testimony would be admissible; and, as the same character of testimony is admissible against the prinicpal in the trial as an accomplice, we hold there was no error in the court’s admitting this testimony. See Crook v. State, 27 Texas Crim. App., 198.
Appellant also objected to the confession Mrs. Holmes made at the house of T. M. Hayes, in the presence of said Hayes, his wife, and Sam Phillips, in which she stated that she poisoned Walter Holmes on December 8th, by giving him four doses of arsenic, the first of which was given on Wednesday, December 2, 1896. Appellant objected to this testimony, because the statement was made in the absence of the appellant, and after the death of Walter Holmes. The court admitted this testimony solely for the purpose of showing the guilt of Mrs. Holmes, and in his charge limited it to that purpose. The testimony was admissible for that purpose.
Appellant reserved a bill of exceptions to the action of the court in refusing to allow him to introduce certain testimony, which he claimed was legal evidence in impeachment of said Stanlee. The bill shows that Stan-lee was a witness for the State; but it is not shown-that he was a material witness, nor what he testified to> save and except that his feelings were friendly towards Mrs. Carrie Holmes. Appellant then proposed to impeach him by showing that he had made an affidavit to secure temporary letters of administration on the estate of Walter Holmes, to the effect that said Carrie Holmes was wasting and selling the community property of said estate, and was wasting the proceeds, and had not and was not paying off any of the debts of said estate; and, further, that he knew the fact to be at the time that Mrs. Holmes had only sold $415 worth of the property of the estate, and had paid.$1045 of the debts thereof, paying $620 thereof out of her private estate. Without discussing the question as to whether or not this character of testimony would be admissible in impeachment of the witness, the bill should certainly show that said witness, whom it was sought to impeach, was a material witness for the State, or should state some facts proved by him which appeared to be material.
Appellant also objected to the court propounding certain questions to the witness Snyder, who was introduced as an expert by defendant. The grounds of the objection were that the court should not interfere in the examination of witnesses, and that a hypothetical question was not stated to the witness Snyder. The bill fails to show how the court came to ask the question; and it does not show that the question propounded by the
court was a leading one. The witness stated that he had heard the testimony of the State’s expert who had made the analysis, and he was then asked upon the hypothetical case, which involved all the testimony, what he thought caused the death of the deceased. We fail to see any impropriety in this action of the court.
Appellant objected to the second, third, fourth, fifth, seventh, eighth, ninth, tenth, and twelfth paragraphs of the charge of the court. By referring to these charges, it will be observed that they are all charges defining malice, and presenting the charge of malice aforethought as an element in the case. By referring to the indictment, it will be seen that the charging part alleges that “Mrs. Carrie Holmes did then and there unlawfully, with malice aforethought, kill Walter Holmes, by poison; and that the said *J. F. Hamlin, prior to the commission of the offense, * * * as aforesaid, did unlawfully and willfully, of his malice aforethought, advise, command, and encourage the said Carrie Holmes to commit said offense, the said J. F. Hamlin not being present at the time of the commission of said offense by Carrie Holmes.” So that, if the charge be objectionable, the indictment is also. The grounds of appellant’s objection are, as we understand it, that our statute makes murder upon express malice a distinct offense, and a homicide by poisoning a distinct offense, and it is not necessary that the latter contain, as an essential element, the charge of malice aforethought. This is not the rule. From time immemorial, a charge of poisoning, as one of its distinctive elements, contains the charge that it was done with malice aforethought. Hnless it was- so done, it is not murder. A killing by poisoning may be either negligent or purely accidental homicide. The rule at common law required that an indictment for poispning contain the allegation "malice aforethought.” See Whart. Hom., sec. 735. In 1 Hale, P. C. p. 455, we find: “He that willfully gives poison to another, that hath provoked him or not, is guilty of willful murder. The reason is because it is an act of deliberation, odious in law, and presumes malice.” The same rule has been folloived in this State. Sec Tooney v. State, 5 Texas Crim. App., 163. We would, moreover, observe in this connection, that certainly appellant can not be heard to complain, because, if his contention be true, it was only necessary to prove homicide by poisoning; but the indictment superadded to this, and the court instructed the jury accordingly, that there must be both poisoning and malice aforethought. If the court had failed or refused to submit a charge requiring the jury to believe that the homicide was committed with malice aforethought, it would have been error.
The court gave the jury the following charge on circumstantial evidence : “In this case the State relies upon circumstantial evidence for a conviction of the defendant; and you are instructed that, in order to warrant a conviction on circumstantial evidence, each fact necessary to the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt; and all the facts necessary to such conclusion must be consistent with each other and the main fact sought to be proved;
and the circumstances, taken together, must be of a conclusive nature, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty of the guilt of the defendant, and ex- . eluding every reasonable hypothesis except the guilt of the defendant. It is not requisite that circumstantial evidence, to warrant a conviction, must demonstrate the guilt of defendant beyond the possibility of his innocence.” Counsel reserved a bill of exceptions to this charge on account of the last clause thereof. It ivas not necessary for the court to have given this last clause, as he had before given a full and complete charge on circumstantial evidence. But the question is: Was the addendum upon the weight of the testimony, and of a nature calculated to injuriously affect or prejudice appellant ? This charge is not usual, and a trial court has done its full duty when it has given the ordinary charge on circumstantial evidence. However, the cautionary charge given as an ab•stract proposition is correct. Whether circumstantial or positive, the evidence in no case is required to be so cogent as to exclude every possibility of defendant's innocence. This is not like the charge in Harrison v. State, 8 Texas Criminal Appeals, 183, 9 Texas Criminal Appeals, 407; nor is it like the charge in Post v. State, 10 Texas Criminal Appeals, 580. In the latter case, however, the court says that, though the charge was upon the weight of evidence, it was not, under the circumstances of that case, of a character to injure the rights of appellant. In White v. State, 19 Texas Criminal Appeals, 343, the charge went to a greater length in being a charge upon the weight of testimony than the charge in this case. The court, however, in that case, says that the main charge given by the court, being a correct enunciation of the law, taken in connection with the qualification, did not mislead or confuse the jury as to the rule of law which had been properly given, and that the same was not prejudicial to the rights of appellant. If said addendum had been calculated to change the rule announced in the main charge, or to modify it, then it might be considered injurious. The main charge instructed the jury that, before they could convict defendant, the testimony must be of a conclusive nature, etc., producing in effect a reasonable and moral certainty that the defendant was guilty, and must further exclude every reasonable hypothesis except his guilt. The addenda in this ease merely stated that, while the rule above given was correct, the hypothesis must not present a mere possibility of innocence, but it must present a reasonable hypothesis. We do not regard the charge as stated above as restrictive of the main charge, or as calculated to mislead or confuse the jury as to the principle announced in the main charge.
The charge was given by the court, applying the law to the facts of the ease submitted to them, and if they believed that Carrie Holmes, of her malice aforethought, did unlawfully kill Walter Holmes, by poisoning said Walter Holmes, as charged in the indictment, and that defendant aided, etc., as charged in the indictment, they should convict appellant of being an accomplice in said murder. This charge was objected to on the ground that the indictment and proof showed an arsenic poisoning
only. If there was evidence of any other character of poisoning in the record, there might be something in this objection.
Appellant objects to the court’s charge on insanity of Mrs. Holmes. The objections are not well taken. The instruction is in accordance with the authorities in this State, beginning with Webb v. State, 5 Texas Criminal Appeals, 596, and down to Burt v. State, 38 Texas Criminal Reports, 397. See, also, White’s Ann. Penal Code, par. 51, for collated authorities.
The issue of alibi was not raised in this case. The court submitted alone the charge of an accomplice, and the State’s case did not depend on the presence of the defendant during the commission of the homicide.
As to the other matters complained of in the court’s charge, we would observe that this case is divided into two phases: First, the guilt of Mrs. Carrie Holmes, as the principal in the murder; and, second, the guilt of appellant, as an accomplice with Mrs. Carrie Holmes. A great mass of testimony was admitted by the court that had reference alone to the guilt of the principal. All the testimony admitted in that connection, we think, was properly admitted, and was properly limited as to its purpose by the court; and appellant’s guilt alone was made to depend on the evidence which connected him with the homicide as an accomplice.
The discussion we have given of the court’s charge sufficiently shows that there was no error in the refusal of the court to give the requested charges, and we will not further discuss said charges.
Appellant also objects to the conviction in this case, because he alleges that the court was not authorized to hold a term at the time of the trial of said case. We presume that his contention is that the act regulating judicial districts did not authorize the term of court of Coleman County at the time appellant was convicted. Appellant does not furnish us with any data as to his contention in this regard. There is nothing in this contention.
Appellant insists that the verdict of the jury is not sustained by the evidence. We have examined the record thoroughly, and, in our opinion, the verdict is supported by the evidence. Looking at the record, there can be no question as to the guilt of Mrs. Carrie Holmes, the principal. It is abundantly established, both by circumstantial evidence and by her own confessions, that she poisoned her husband with arsenic, administered to him in water four different times during the week before his death; and the circumstances, we think, amply connect appellant as an accomplice in the charge. We summarize the inculpatory facts as far as appellant is concerned, as follows: The testimony showed his illicit relations with Mrs. Carrie Holmes about a year antedating the homicide. This, in connection with the desire to marry her, was the motive which actuated him in getting rid of the deceased. His going to Glen Cove on Tuesday morning, and remaining there until Saturday, is accounted for only on the hypothesis that Mrs. Holmes informed him on that Tuesday morning of the altercation that occurred between herself and her husband previously on that same morning, with reference to the letter which
he (appellant) had -written to Mrs. Holmes; and the further fact, as admitted by him, that Mrs. Holmes informed him on that Tuesday morning of what had occurred, and that her husband had gone to Santa Anna armed, and his life was in danger. His conduct during the sickness of deceased, when he was suffering with poison administered by his wife, also tends to show guilty knowledge on his part. Though he lived within half a mile of deceased, was his" neighbor, and in the habit of getting milk at his house, after his return from Glen Cove (which was on Saturday before deceased’s death, on Tuesday), appellant did not go into his presence, but was seen in the rear of the premises in the vicinity of the barn under circumstances that showed that he and the wife of the deceased had held an interview. This was on Sunday. On the night after the death of the deceased, he was seen to have a private conversation with Mrs. Holmes on the gallery of their house. His conduct at the grave the next day, when the pigeon was turned loose, was a circumstance against him; as was also his conduct on the night after the burial, when he was seized with horrors, saw spirits, and physicians had to be sent for and neighbors called in to attend him; and the further fact that, the next morning after the burial, he had a private interview with Mrs. Carrie Holmes, at the house of Dr. Hayes, which is not explained. Appellant not only admitted his illicit relations with the deceased’s wife antedating his death, but also that their marriage was agreed upon. In that connection, he told deceased’s wife that Holmes was robust, and was calculated to outlive either one of them; but he said ho would wait for her, if it was tweffir ji-ears. Furthermore, he admitted in January (after the death of deceased, on December Sth) that he and Carrie Holmes were to be married in the coming December, unless something happened. And in addition to all this, as evidence strongly inculpatory, after the homicide he addressed a letter to Mrs. Holmes, avowing his affection and trust in her, and beseeching her iC not to give him away.” These, and other facts we might mention, it occurs to us, are of a conclusive nature, establishing his guilt bejmnd any reasonable doubt; and the jury were fully authorized in finding the verdict they did. There being no reversible errors in the record, the judgment is affirmed.
Affirmed.
"Hurt, Presiding Judge, absent.
[Mote.—Appellant’s motion for rehearing, filed Hovember 14, 1898, was overruled without a written opinion, March 1, 1899.^-Reporter.]