Marshall v. State

5 Tex. Ct. App. 273

• Court: Court of Appeals of Texas
• Decided: July 1, 1878
• Status: Published

Opinion

White, J.

P. B. Marshall, this appellant, was indicted for the murder of one Dora Dees. The murder is alleged to have been committed by mixing and mingling strychnine, a deadly poison, with flour, which was afterwards made into bread, and which was thus eaten by the said Dora Dees, from the effects of which she died on April 4, 1878.

The statute under which the indictment was brought reads as follows:

“If any person shall mingle any poison, or any other noxious potion or substance, with any drink, food, or medicine, with intent to kill or injure any other person, or shall wilfully poison any spring, well, cistern, or reservoir of water with such intent, he shall be punished by imprisonment in the penitentiary not less than two nor more than ten years.” Pasc. Dig., art. 2198.

“ If any person shall, with intent to injure, cause another person to inhale or swallow any substance injurious to health or any of the functions of the body, or if such substance was administered with intent to kill, he shall be punished by confinement in the penitentiary not less than two nor more than five years.” Pasc. Dig., art. 2199.

“ If, by reason of the commission of the offences named in the two preceding articles, the death of a person be caused within one year, the offender shall be guilty of murder, and punished accordingly.” Pasc. Dig., art. 2200.

“ All murder committed by poison * * * is murder in the first degree.” Pasc. Dig., art. 2267 ; Tooney v. The State, decided at the present term of this court, ante, p. 163.

A motion was made to quash the indictment, which was, as we think, properly overruled ; the allegations being, in our opinion, sufficient to charge the offence. Defendant’s motion for a continuance being then heard and overruled, was immediately followed by a trial of the case, which resulted in the conviction of defendant, the punishment incident thereto and assessed being death by hanging.

The record of the proceedings, as presented here, is quite voluminous, and contains many interesting questions, which we do not propose to discuss, because not essential to a disposition of the case, and not likely to arise on a subsequent trial. We have given the case all the consideration which the importance to the defendant of the issues involved claimed at our hands, and in doing so have, if possible, experienced a greater degree of responsibility than usual even in such cases, owing to the fact that the conviction, in so far as it does not rest upon the testimony of a jparticeps criminis, is based on evidence entirely circumstantial, and the further fact that appellant has not been represented on his appeal, by brief or otherwise.

Six bills of exceptions were saved by defendant during the trial, three of which only it is proposed to notice, to wit, the third, fifth, and sixth.

The third bill is, that the court “ permitted the district attorney to introduce testimony showing that the defendant’s leading counsel, J. H. Glasgow, Esq., had written to Emmett Marshall, a witness in said cause, to leave his place of business and remain away, so as to avoid the service of the process of the court, and to stay away until the said cause was continued, the district attorney stating to the court that he would be able to connect the defendant with the said conduct of his counsel; and the court, being of the opinion that the district attorney had not sufficiently connected the defendant with the said conduct of his counsel, excluded all of said testimony from the jury, then and there instructing the jury to disregard the same,” etc.

As laid down by Mr. Greenleaf, the rule is that “ it is not necessary, however, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although it might not justify a verdict in accordance with it. Nor is it necessary that its relevancy should appear at the time when it is offered, it being the usual course to receive at any proper and convenient stage of the trial, in the discretion of the judge, any evidence which the counsel shows will be rendered material by other evidence which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be laid out of the case.” 1 Greenl. on Ev., sec. 51 a: This is the rule in civil cases, and ordinarily the rules are the same in civil and criminal cases

In the case at bar, the learned judge did all that he had power to do at the time, by instructing the jury to disregard the evidence, when he became satisfied that the district attorney had failed to connect defendant with the illegal acts of his attorney. Still it must be apparent that such testimony having once gone to the jury, its impression would necessarily, to some extent, remain in their minds, though they were ordered to discard it; and in a case of circumstantial evidence it is next to impossible to say how far that impression exercised its influence in supplying any defect which might have arisen, or in solving any doubt in their minds on the general state of the evidence. A prosecuting officer in behalf of the State, in his zeal for a conviction, should never overlook the fact that the interests of society and the vindication of the law require at his hands as much the protection of the innocent as the conviction of the guilty. Evidence of this character, in cases involving life, should never be proposed by him unless he is morally certain that he can make good his promise of connecting the defendant with the matter; there should be no room for doubt where, as in this case, he could have ascertained in advance the existence or non-existence of defendant’s connection with the proposed evidence.

Bill of exceptions No. 5 was an objection to the entire testimony of the State’s witness W. B. Lawrence, which was as follows: “ I know the defendant, P. B. Marshall; have known him about a year and a-half. I live in the town of Graham, Young County. After the defendant, P. B. Marshall, and Shockley were arrested for the murder of Dora Dees, and while the said Marshall was under arrest, the deputy-sheriff brought him down to my house. While there he said to me, ‘ I want you to go and see Shockley, and tell him he must leave the country, and that if he will leave, I will furnish all the money he wants.’ I made no reply. The deputy-sheriff was close enough to have heard this conversation; can’t say whether or not he did hear it. It was in a low tone of voice.”

Objection to the evidence was that defendant was in the custody of the officer at the time such declaration was made. Whether coming strictly and technically within the legal definition of a confession or not, it is evident that in its effect and the use it was intended to subserve, in connection with the other circumstances, it must have been introduced by the State as an equivalent to an admission or confession of guilt which could only be obviated by getting the principal State’s witness out of the country. In this view, was the evidence admissible?

The rule prescribed by the statute is that “the confession of a defendant may be used in evidence against him, if it appear that the same was .freely made, without compulsion or persuasion, under the rules hereafter prescribed.” Pasc. Dig., art. 3126.

“ Art. 3127. The confession shall not be used if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in custody of an officer, unless such confession be made in the voluntary statement of the accused, taken before an examining court in accordance with law, or be made voluntarily, after having been first cautioned that it may be used against him,” etc.

Now, in order properly to arrive at the gist of the question, let us suppose that the defendant, instead of telling the witness Lawrence to get Shockley to leave the country, had told the witness outright and absolutely that he had poisoned the deceased, would such testimony by Lawrence have been admissible? Clearly not. Why? Because the defendant at the time it was made was in custody, and had not been warned. If, then, he could not have testified to a confession directly admitting the corpus delicti, how could a confession of a collateral matter going to establish a matter directly connected with the corpus delicti, and essential to its proof, be admissible in evidence against him? The distinction between the two is not perceived. “ When the confession' of a defendant to the main fact in issue would not be’ admissible, it is, as a general rule, inadmissible to permit evidence of collateral facts by which it was necessary to establish the main facts.” Haynie v. The State, 2 Texas Ct. App. 168 ; Davis v. The State, 2 Texas Ct. App. 588 ; Taylor v. The State, 3 Texas Ct. App. 387.

Under these rules, the admission of the testimony of the witness Lawrence was, in view of the circumstances stated in the exception, an error which would alone, of itself, necessitate a reversal of the judgment. We propose, however, to notice one or two other errors complained of.

The sixth bill of exceptions raises the question of practice as to the nature and extent of the questions to be asked with regard to the impeachment of a witness for truth and veracity in the neighborhood in which he lived. After the witnesses had stated that they knew the witness’s character for truth and veracity in the neighborhood in which he lived, and that it was bad, defendant’s counsel proposed to ask each of the impeaching witnesses the further question, “ From that reputation, would you believe him upon oath? ” which question was, on motion of the district attorney, excluded, upon the ground that it was unnecessary. As put, the question was doubtless incorrect. The mode and manner of impeaching a witness for truth and veracity was maturely considered and elaborately discussed in the able opinion of Bell, J., in Boon v. Weathered, 23 Texas, 675, and all the leading authorities examined and reviewed. Summing up the result of his investigation of the subject, he says : “ Where the impeaching witness is asked 6 whether or not he could believe the other on oath,’ he is more likely to give an answer suggested by his personal knowledge, or prompted by his personal feelings, or his individual opinion, than he is when asked whether or not he is acquainted with the general reputation of the impeached witness for truth, and whether it is good or bad. If the impeaching witness states that he is acquainted with the general reputation of the former witness for truth in the community where he lives, he may then properly be asked whether that general reputation is such as to entitle the witness to credit on oath; or any other form of words may be used which do not involve a violation of the cardinal principles that the inquiry must be restricted to the general reputation of the impeached witness for truth in the community where he lives, or where he is best known, and that the impeaching witness must speak from genei-al reputation or report, and not from his own private opinion.” He says : “ I think these conclusions are sound upon principle, and are supported by the most numerous and best considered authorities.” 23 Texas, 675..

The last subjects which we propose to notice are the errors complained of in the second ground of the motion for a new trial, and the ground set forth in the second subdivision of the assignment of errors. In the motion for anew trial the error is thus stated : ‘6 That the cause of said defendant has been fatally prejudiced by the want of proper skill and management of his case by his counsel employed to defend him. The senior counsel in said defence was, during the pending of the trial of this cause, suspended from practising law by this court for malpractice, and only suffered to act as attorney-at-law during the further proceeding of said trial; thereby the defendant was seriously prejudiced in the minds of the jury.”

In the second assignment of errors we find the following statement, viz.: That “ the court erred in allowing evidence of unprofessional conduct of the leading counsel in attempting to get a continuance, before the knowledge thereof was brought to the defendant, to come before the jury; and permitting the attorneys for the prosecution to comment on the testimony having been so admitted as a circumstance of guilt, notwithstanding the court charged the jury not to consider such evidence.”

We have copied these two grounds of complaint more with a view of illustrating the necessity of an observance of the rules of practice than as points involved in the case.

If these errors were committed as alleged, then we can readily imagine how serious a damage might have been occasioned the cause of the defendant by having his leading attorney, in the presence and hearing of the jury, suspended from practice of the law for malpractice in the case then on trial by the jury; and we can also imagine the damage and wrong which might have been done by permitting attorneys for the prosecution to comment on such facts and circumstances in their argument of the case to the jury. But are there such facts in this case, which can be considered by us? Certainly not; there are no corresponding bills of exceptions, and they may be the mere unsupported assertions of counsel, for aught that appears in the record. If such proceedings did occur, then defendant’s counsel should have saved a bill of exceptions, stating the facts and circumstances in full, and have presented it to the district judge for allowance; and if he refused to sign and certify the same, then have it authenticated by bystanders, as the law provides. This is the only mode by which such irregularities can properly be saved and presented for action and revision in this court. As they are presented in this record, no matter how grave or serious they might appear, we can take no notice of them, because they do not come before us as noticeable facts properly raised, and connected with and growing out of the case as tried in the court below.

As stated above, the judgment will be reversed because of error committed in admitting proof of admissions or g'Mctsi-confessions made by defendant whilst in custody.

Reversed and remanded.