Heacock v. State

13 Tex. Ct. App. 97, 1882 Tex. Crim. App. LEXIS 195

• Court: Court of Appeals of Texas
• Decided: November 8, 1882
• Docket: No. 1372
• Status: Published

Opinion

Willson, J.

The defendant was indicted for the murder of her husband, Gad Heacock, by poisoning him with arsenic and strychnine. At the November term, 1881, of the -district court for Van Zandt county, she was tried upon this indictment and found guilty of murder in the first degree, and her punishment assessed by the jury at confinement in the penitentiary for life. She has appealed from, this conviction to this court, and assigns various errors in the proceedings of the court below, and because of these errors, asks a reversal of the judgment.

■ The first error assigned is: “The court erred in refusing to compel the State’s counsel to furnish the defendant with a list of private prosecutors in this cause, as set out in bill of exceptions No 1.” By reference to bill of exceptions No. 1, we find that a subscription had been raised to obtain money to employ attorneys to prosecute the defendant upon this charge; that the defendant’s attorneys, on Monday before the' case was called for trial on Wednesday, notified the State’s counsel that a full list of the subscribers to this fund would be demanded on the trial; that when the case was called’for trial defendant’s counsel demanded said list of the State’s counsel, and it was not furnished, and thereupon defendant’s counsel demanded of the court to compel the list to be furnished, which the court declined to do, because the State’s counsel could not produce it; but the court announced that, as the list was not known and could not be produced, the counsel for defendant could ask each juror and each witness the question whether or not he had subscribed to the prosecution, fund.

The first question that presents itself under this exception is: Were the persons who subscribed money to aid in the prosecution of the defendant private prosecutors within the meaning of the law ? If they were, then they would not be allowed to try the case as jurors, if challenged for this cause; nor would they be allowed to sit as jurors, if challenged, if they were related to a private prosecutor in the case within the third degree of consanguinity or affinity. (Code Grim. Proc., Art. 636.) We do not think, however, that the mere fact that a person has paid, or promised to pay, money to aid in the prosecution of a person charged with crime is sufficient to constitute the person thus aiding a private prosecutor within the meaning of the statute.

Mr. Bouvier defines a private prosecutor as follows: “A private prosecutor is one who prefers an accusation against a party whom he suspects to be guilty.” (Bouvier’s Law Dictionary, title Prosecutor.) A person might furnish money to aid in the enforcement of the lhw against a suspected criminal, and yet be perfectly impartial in respect to the accused party. He might not even know the suspected party, or the crime with which such party is charged, or any of the facts connected with the case. Of course, if, in connection with the fact that he had rendered pecuniary aid to the prosecution, it was shown that he entertained a prejudice against the accused, or had established in his mind a conclusion as to his guilt, he would be disqualified to serve as a juror in the case. But this disqualification would be on other grounds than that the pecuniary aid extended to the prosecution by him rendered him a private prosecutor. We hold, therefore, in this case, that the persons who subscribed to the fund being raised to employ attorneys to prosecute the defendant were not thereby rendered her private prosecutors.

We think, furthermore, that, even if they were private prosecutors, the question is not presented in such a manner as to call upon this court to revise the action of the trial court in regard thereto. It is not made to appear that it was within the power of the State’s counsel to furnish the defendant with a list of the persons claimed to be private prosecutors; nor is it made to appear that any such persons, or the relatives of any such persons within the third degree of consanguinity or affinity, served as jurors in.the trial of the cause. The rulings of the trial court in organizing a jury are not revisable unless they infringe the law or prejudice the accused. (Ray v. The State, 4 Texas Ct. App., 450; Gardenhire v. The State, 6 Texas Ct. App., 147.)

The second assignment of error is unimportant. The third assignment is as follows: “The court erred in permitting John E. Owens, witness for the State, to testify as an expert as to handwriting by comparison, without first qualifying as an expert, as appears by bill of exceptions Ho. 3.”

The witness Owens was introduced by the State. He testified that he had been engaged in the banking business about five years, and was more or less experienced in handwriting—that his clerks did the most of his corresponding, etc. He had little occasion to exercise in comparing handwriting, and did not consider himself an expert,—was never before called to testify in a case as an expert; seldom had occasion in his business to compare handwriting; thought he could tell handwriting by comparison; thought he could by comparing two written instruments, tell whether or not they were written by the same person ; did not consider himself an expert in comparing handwriting. Having thus stated, this witness was permitted by the court, over the objections of the. defendant, to testify as an expert in the comparison of handwriting, and to state his opinion that certain letters and the superscriptions upon certain envelopes presented to him, and which were afterwards read in evidence by the State, were in the same handwriting.

It is provided by our Code of Criminal Procedure that “It is competent in every case to give evidence of handwriting by comparison, made by experts or by the jury.” (Art. 754.) The question here presents itself, was the witness Owens shown to to be an expert? In order to determine this question we must first ascertain what constitutes such an expert.

Mr. Bouvier defines experts generally as follows: “ Experts are persons who are selected by courts, or the parties in a cause, on account of their knowledge or skill, to examine, estimate, and ascertain things, and make report of their opinion.” (Law Dictionary, title “Expert;” Speiden v. The State, 3 Texas Ct. App., 156.) Mr. Wharton, in his excellent work on Criminal Evidence, says: “An expert has been defined to be a witness who testifies as to conclusions from facts, while an ordinary witness testifies only as to facts. This definition, however, is not sufficiently exact. Ho witness called to detail facts reproduces such facts as they really exist. Apart from the psychological question whether what we see is immediately perceived by us, such acts are inferred, not actually witnessed. * * * We must therefore proceed further when we seek to distinguish between the expert and the non-expert. And the true distinction is this: that the non-expert testifies as to a subject matter readily mastered by the adjudicating tribunal; the expert to conclusions outside of such range. The non-expert gives the results of a process of reasoning familiar to every day life; the expert gives the results of a process of reasoning which can be mastered only by special scientists.” (Whart. Cr. Ev., sec. 404.) The same author also says: “To entitle a witness to be examined as an expert in a specific topic, he must, in the opinion of the court, have special practical acquaintance with the immediate line of inquiry.” (Whart. Cr. Ev., sec. 406.) The question as to the competency of a witness offered as an expert is one for the court to determine, and should not be left to the jury. (Whart. Cr. Ev., sec. 406.)

In Speiden v. The State, 3 Texas Ct. App., 156, two bank tellers were held to be competent to testify as experts as to handwriting. Judge White, in delivering the opinion in that case, says: “In this case it is objected that the witnesses testifying did not qualify themselves as experts. We do not think the objection tenable. They were both tellers of banking houses in the city of Dallas; one having had four years and the other two years experience in such position, where they were daily passing upon the genuinenness of signatures, and paying hundreds of checks, and both thought themselves experts and competent to judge of handwriting.”

We are of the opinion that the facts in this case in relation to the competency of the witness Owens to testify as an expert in the comparison of handwriting are not sufficient to qualify him as such expert, and we think the court erred in permitting him so to testify. As has been well said in Jones v. The State, 7 Texas Ct. App., 457, in discussing the subject of proof of handwriting by comparison: “The fact, howevér, that our statute permits such evidence does not change the well established rules as to the value of such testimony. Such evidence has always been considered feeble, and in some States unsafe to act upon.” It may be added that the English rule is to exclude such testimony entirely, and that rule has been pronounced by our Supreme Court to be the better rule, and such was the rule in this State until the enactment of Article 754, Code of Criminal Procedure, which expressly provides for the admission of such testimony; and such is believed to be the rule now in civil causes in this State. (Hanley v. Gandy, 28 Texas, 211.) This character of evidence, therefore, being weak at best, it ought never to be admitted when it comes in a questionable shape. A witness who is offered for the purpose of affording such evidence should be shown to have at least a general knowledge of the matter about which he is called to testify. This witness stated that he had no experience in comparing handwritings, was not an expert in that respect, though he thought he could tell whether or not two different instruments had been written by the same individual. The instruments in regard to which he was permitted to testify as an expert were afterwards introduced in evidence in the case, together with his opinion in regard thereto, and formed the most material evidence for the prosecution that was adduced upon the trial. It is fair to conclude that the verdict of the jury was influenced by this evidence to the prejudice of the defendant. It being necessary to the State’s case to use this character of evidence, it should have produced the best attainable, men experienced in handwriting, and in the comparison of handwriting, and not relied upon the testimony of a witness who, as confessed by himself, and as shown by his statements as to his practice and experience, was not an expert in comparing handwriting. ‘ ‘ One who does not profess to be an expert in handwriting, and whose avocation in life has not been such as to qualify him to judge of handwritings, should not be permitted to testify as an expert.” (State v. Tompkins, 71 Mo., 613.)

The fourth, fifth and sixth assignments of error relate to the same matter presented in the third assignment, and which we have above determined. The seventh assignment of error has not been insisted upon, and is not important.

The eighth, ninth, tenth and eleventh assignments of error all relate to the same subject and will be considered together. The theory of the prosecution, in this case, seems to be that the defendant and one O. W. Ball alias 0. Wing, a dentist, were guilty of an adulterous intercourse with each other, and conspired together to murder the husband of the defendant, Oad Heacock, by poisoning him, and did in fact thus murder him, the defendant administering the poison, which had been supplied her by her paramour. To establish this theory the evidence adduced is entirely circumstantial. The most material portions of this evidence, and that upon which the verdict of conviction was based, are certain letters which are claimed to be in the handwriting of the defendant, and which were found in the possession of Ball alias Wing, after the death of the deceased; also, certain envelopes, and the handwriting thereon, one claimed to be in the handwriting of Ball alias Wing, and the other to be in the handwriting of defendant. It is only necessary that we consider the letters and the address upon the envelope which are claimed to be in the handwriting of defendant.

It was proved by the witness Owens, who was permitted to testify as an expert, that, in his opinion, the handwriting on the envelope, and the handwriting of the two letters read in evidence, were the same handwriting. The envelope in question was directed to "Dr. C. W. Ball, Grand Saline,” and was mailed at the postoffice at Wills Point, Texas. The defendant at the time the letter was mailed resided at Wills Point, and Doctor C. W. Ball alias Wing was at that time at Grand Saline. The circumstances proved in regard to this envelope tend very strongly to show that the defendant mailed or caused it to be mailed. But no one saw her write it, and there is no proof whatever that it was her handwriting, and she at no time admitted that she wrote it. There is no direct effort to prove her handwriting, but the effort is to establish by circumstances that the envelope in question was directed by her, and that she caused the same to be mailed. This direction upon the envelope is made the standard of comparison by the witness Owens, and by the court and jury, in determining whether or not the two letters read in evidence were written by the defendant.

It is a well established rule that the handwriting used as a standard of comparison must be either an admitted manuscript, or be established by clear and undoubted proof. The evidence establishing it as a standard must be either direct, or equivalent to direct. (Eborn v. Zimpleman, 47 Texas, 503; Phillips v. The State, 6 Texas Ct. App., 364; Hatch v. The State, 6 Texas Ct. App., 384; 1 Greenl. Ev., Sec. 581.) We do not think the proof by which it is claimed that a standard of handwriting was established in this case is of that clear and undoubted character which the law requires. We think the court erred in admitting in evidence the envelope and the two letters, over the objections of the defendant.

There are a number of other assignments of error, but they are such as are either substantially embraced in those we have discussed, or are of a nature not likely to arise on another trial, and we shall therefore only notice the last one, which is, because the verdict of the jury is contrary to the evidence. We do not think, in view of another trial of this cause, that it would be proper for us to comment upon and compare the evidence. We will make this remark, however, by way of suggestion, that in our opinion the proof of the corpus delicti is exceedingly meagre and unsatisfactory. If in.fact the deceased came to his death by poisoning, it occurs to us that this fact could be more satisfactorily proved than is shown in the record. In other words, the expert .testimony upon this subject, as presented in the statement of facts, is not of that perfect and conclusive character which we have a right to expect from men who profess to be skilled in the science of medicine. The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered November 8, 1882.