Orner v. State

183 S.W. 1172, 78 Tex. Crim. 415, 1916 Tex. Crim. App. LEXIS 7

• Court: Court of Criminal Appeals of Texas
• Decided: January 5, 1916
• Docket: No. 3674.
• Status: Published

Opinions

PRENDERGAST, PeesidiNg Judge.

Appellant was convicted of the murder of her own daughter by poison, and her punishment assessed, at life imprisonment.

This is the second appeal of this case. The first is reported in 65 Texas Crim. Rep., 137. No question which was decided on the first appeal arose on the last trial. After the other reversal the venue was changed from El Paso County, and trials, or mistrials, had in four other counties, to which the case was respectively transferred on change-of venue. The venue was at last changed back to El Paso County, and this trial had therein. Before the venue was'first changed from El Paso County, this record shows that appellant was properly arraigned and pleaded not guilty.

This trial was begun February 23rd and was concluded March 3, 1915. Ok March 5th, appellant filed a motion for a new trial on various grounds. ' That motion, as this record shows, did not then in any way claim that the indictment was not read to the jury when the trial began. Later, appellant had leave of the court to file her amended motion for a new trial, and, on March 20, 1915, for the first time set up as one of her' grounds for new trial that the indictment was not read, but that a certified copy thereof was read instead. Her amended motion was supported by the affidavits of two of her attorneys, who, in effect, swore that a certified copy, and nbt the original, was read to the jury. The affidavit of each of her attorneys contains allegations tending to show that they were correct in stating that a certified copy and not the original was read. The district attorney, who, in connection with an assistant, represented the gtate on the trial, under his official oath denied that the copy was read and as pointedly alleged that the original was, and not the copy. The assistant district attorney made an affidavit, wherein he swore positively that the original was read and that the copy was not, and therein he alleged other facts borne out by the record, which tended to support him in his affidavit. The said motion and amended motion and all of said affidavits were heard by the trial judge on March 20, 1915, whereupon he overruled appellant’s motion for a new trial on that ground, and every other as well. In addition to this, the judgment specifically states that, when the case was called for trial the State appeared, as did the defendant in person, and her counsel also being present, when both parties announced ready for trial. It proceeds: “The indictment was read to the jury, and the defendant, Agnes Orner, in open court pleaded not guilty to the charge contained in the indictment herein.” ■ There can be no question but that from all this the conclusion is certain that the judge was authorized to believe, and must have believed, that the original, and not said copy, was read to the jury, and that it was to the reading of the original, and not the copy, that appellant plead not guilty.

The record in some particulars on this point is not clear. In approving appellant’s bill on this subject, it appears that the judge did so on March 15th, which was five days before said affidavits and the motion for a new trial presenting that question were filed and heard. By his qualification of the bill at that time, the judge states that sometime at or about the. close of the evidence something was said by defendant’s counsel, that the indictment had not been presented, but that in lieu thereof a certified copy of it had been read to the jury. Whereupon he examined all the papers in the cause, which were voluminous, and in said papers was found a certified copy of the indictment, and the said assistant district attorney, representing the State, shortly thereafter presented to him the original indictment, at the time stating to him that it was the original which was read to the jury. He then states: “The court has no way of determining which instrument was read to the jury, as he does not know.” From this, we take it, it is reasonably certain that the judge at that time, and at the time he made this qualification, had not heard the motion, nor said affidavits, but he states wbat be did at about the time of the conclusion of the evidence in the case on his own independent investigation at that time. Hence, we conclude that his then qualification in no way militates against his action when he heard the motion and all the affidavits, as shown above.

In addition, both the original and a certified copy thereof, under the -order of the lower court, were sent up and constitute a part of this record. We have examined and carefully compared the copy with the original and find there is no particle of difference between them. Every word, letter and figure in the original is copied precisely in the certified copy. If it had been the copy instead of the original which was read, no possible injury occurred to appellant thereby of could have occurred. If it be true that the copy, and not the original, was read, it was all done in her presence and must have been with her knowledge, and it was also in the presence of her attorneys, and must have been, •and was, if they are correct, within their knowledge at the very time it occurred. Neither she, nor her attorneys, or any of them, at that time, or at any other time, until the close of the evidence, at least intimated or suggested that it was the copy and not the original which was read. She, and neither of them, objected to it at all in any way until after the trial was concluded, and in her amended motion for new trial, which was filed some seventeen days after the verdict an'd judgment. The slightest intimation of this mistake, if it was a mistake, to the court, or the State’s attorney, at the time would have righted the matter immediately. Under the circumstances, we think that her .action and her attorneys’ action, or rather their inaction, at the time was a waiver of the reading of the original, if, as a matter of fact, the copy instead was read. That she could waive it is both' statutory (art. 22, C. C. P.) and has repeatedly been decided by this court. Barbee v. State, 32 Texas Crim. Rep., 170; Essary v. State, 53 Texas Crim. Rep., 596; Davis v. State, 70 Texas Crim. Rep., 563. See also Johnson v. State, 75 Texas Crim. Rep., 562, 171 S. W. Rep., 1128; Coffman v. State, 73 Texas Crim. Rep., 295.

On the doctrine of the waiver, Mr. Bishop in his New Cr. Proc., vol. 1, see. 117, says: “In natural reason one should not complain of a thing done with his consent. And the law, in all its departments, follows this principle. It is analogous to estoppel, or a species of it.” In section 119 he says: “Necessity — is the chief foundation for this doctrine. Without it, a cause could rarely be kept from miscarrying. The mind, whether of the judge or the counsel, can not always b'e held taut like a bow about to send forth the arrow; and if every step in a ■cause were open to objection as well after verdict or sentence as before, a shrewd practitioner could ordinarily so manage that a judgment against his client might be overthrown. Even by lying by and watching, if he did nothing to mislead, he would find something amiss, to note and bring forward after the time to correct the error had passed.”

While introducing the evidence each side introduced the testimony of different witnesses, which was given by them in former trials and taken down in writing. In other words, these witnesses were not on the stand, but* instead, their testimony as transcribed was introduced. •Among these was Mr. Van Horn. After the jury had been charged and retired, they returned in open court, whether at different times or at the same time is not made certain, but at any rate, stated in writing-thát they did not remember the names of these several witnesses and wanted their testimony read. They mentioned several of these witnesses. Among them, they wanted Van Horn’s and asked the court: “Did Mr. Van Horn testify at Pecos, Texas, in the trial of Agnes. Orner that he, Van Horn, heard Mrs. Orner tell Mrs. Archer that she,. Mrs. Orner, killed Lillie. Orner?” Over the .appellant’s objection the-court permitted the testimony of said Van Horn to then be read, which, was: “Mrs. Riley (now Mrs. Archer) and myself were at the side of the bed and Hairy Shapperd was standing at the foot-like in the room, and she (defendant) was talking to Mrs. Riley, and she turned over and had her arms around her neck that way, and made the remark, she (defendant) said: ‘1 have killed Lillie! What shall I do! What, shall I do!’ At that moment I reached and pulled Mrs. Archer’s dress, and motioned for her to go away and she walked away from the bed.. Mrs. Omer said: ‘1 have killed Lillie! What shall I do! ,What shall. I do!”s Appellant objected that the jury had not disagreed as to Van Horn’s testimony* but had forgotten his testimony, and that the-reading of it again would prejudice the jury against her and give undue emphasis to his testimony. We think the questions by the jury to the-judge sufficiently, if they do not clearly, show when properly construed,, that the jury did disagree as to the statement of this witness, and it was the duty of the court, under the circumstances, in the proper and due administration of the law under article 755, C. C. P, to have read, as he did, said testimony of Van Horn. It is literally his testimony as introduced on the trial. No question is made of this. In Clark v. State, 28 Texas Crim. App., 189, it appeared that the trial' judge permitted the testimony of the deceased witness taken at an examining trial to be reread for the third time to the jury after they had been in retirement considering their verdict two days and nights. The court held that, by the provisions of the statute, if the witness had testified orally, he could be recalled and detail his testimony again as to the points of disagreement, and held that that statute did jiot expressly provide for the reading "of written testimony or the deposition of the witness. The court said:

“Where the evidence is by deposition or in writing taken on examining trial, we can see no. good reason why, if the jury so desire, they can not have it reread to them where they have disagreed about it. Such written testimony can1 not be easily altered.

“At all events, it is to be presumed that it has not been altered until the contrary is shown, and where this is not done we can not perceive how its being reread in the same identical language could mislead the jury or unjustly prejudice defendant. We are unable to see that any error has been committed or wrong done the defendant in this regard. . . Galan v. State, 76 Texas Crim. Rep., 619, 177 S. W. Rep., 124. We think no reversible err.or is shown in this matter.

The testimony, without reciting it, was amply sufficient to justify the jury to believe that appellant killed her husband by poisoning him with arsenic just about nineteen months before her daughter Lillie was unquestionably killed by the same kind of poison. The testimony, without contradiction, shows that at the time of the death of her husband, she was suspected of killing him by poisoning, and at the time a postmortem examination was made of him to ascertain If he was killed in that way, but for reasons unnecessary to state here, it was shown that no chemical analysis whatever was made of the organs of his body, or the contents of his stomach or intestines to ascertain what poison, if any, had been administered to him. The testimony further showed that her daughter Lillie repeatedly, when out of humor with her after her father’s death, said to her, in substance, “I know you killed papa, and you know that I know it,” and, when her daughter would so state to her, she would send her away to play, and tell her not to talk too much, and one witness swore that appellant told her that she was thinking of putting Lillie in a Catholic school, oy something of that kind, because Lillie talked too much. It was clearly shown that Lillie, appellant’s daughter, was killed by arsenic poison. From the fact that the post-mortem examination of Mr. Orner at the time failed to disclose arsenic poison, the jury were authorized to believe that appellant concluded that, when a person was killed by arsenic poison it could not be detected by a physician. TJnder these circumstances the court, therefore, committed no error in permitting Lee Newman to testify over her objections that Mrs. Orner, after the death of her husband and before that of her daughter, told him she knew of a poison which, administered to a person, could not be detected by a physician. This evidence, we think, under the circumstances of this case, was clearly admissible.

In her direct examination she testified she traveled considerably with her daughter Lillie, and among other places took her to Los Angeles, and from Los Angeles to Denver, and from Denver to a spring in Kansas, stating the doctor told her to go to the springs with her, and she went there and stayed two months. One of her bills shows that, on cross-examination of her, the district attorney asked if she Ivas at Lundsberg, Kansas. She answered: “Yes.”« He then asked her if she knew a man there by the name of Alvin Carlson. She answered: “I don’t know.” He then asked her: “Didn’t you go there with a view of marrying him?” She answered: “No, sir; never.” The district attorney then asked her if this man Carlson didn’t die rather suddenly. Appellant objected to this last question. The court promptly sustained her objections and instructed the jury not to consider the same.

By another bill it is shown that the district attorney, on cross-examination of her, asked if she remembered when she was tried in the County Court for insanity. She answered: “Yes, I guess so. You prosecuted me.” He asked if that 4vas before this Lucas child died. She answered: “I don’t know.” He asked: “Was it before or after the Lucas child died 7a Whereupon appellant objected to this last question, and the court promptly sustained her objection and instructed the jury not to consider the same.

In her. direct examination she testified that Lillie was the only child she had when she lived in El Paso and was the only kin she had in this world. She further testified to her great lore for, close attention to, and devotion she had for, her daughter Lillie. It is unnecessary to go into details of her testimony along this line. And, on cross-examination, she was asked, and testified that she had had two other children. That one of these died in infancy of summer complaint in Globe, Arizona. In one of her bills, it is shown that the district attorney asked her if she had not testified in the insanity trial that this child took suddenly sick, and after it died she opened its hand and iound a scorpion in it. Her attorney objected to this, and the court overruled the objection and allowed the district attorney to ask said ■question. The bill in no way shows what her answer was or that sh.e answered the question at all.

She has another bill, in which it is shown that, on cross-examination, she was asked how many children she had. She answered: “Three,” and was asked: “When did those two die?” She answered: “The first lived to he nine months old and died with pneumonia.” This referred to the child who died in Minnesota. Her attorneys objected to these questions, and their objections were overruled.

We have stated these last four bills so as to consider them together. While we think some of the questions were improper and should not have been asked, yet none of them, nor all of them together, show any prejudice to appellant, nor any reversible error. Such questions, unanswered, or where answered as in "this instance, have been many times and repeatedly held by this court to present no reversible error. No injury is shown by any or all of them that could have affected her. There are so many eases by this court holding, as stated, we deem it unnecessary to discuss the question. We will cite some of them. They are all applicable on this point and are decisive against appellant. Phillips v. State, 59 Texas Crim. Rep., 534; Huggins v. State, 60 Texas Crim. Rep., 214; Morrow v. State, 56 Texas Crim. Rep., 519; Hart v. State, 57 Texas Crim. Rep., 24; Warthan v. State, 41 Texas Crim. Rep., 385; Belcher v. State, 39 Texas Crim. Rep., 121; Renn v. State, 64 Texas Crim. Rep., 639; Sweeney v. State, 65 Texas Crim. Rep., 593; Hearn v. State, 73 Texas Crim. Rep., 390; Polter v. State, 70 Texas Crim. Rep., 197.

It is also well established that, even where such questions are answered and the court then withdraws the matter from the jury and instructs them not to consider it, no reversible error is presented. Kinney Miller v. State, 185 S. W. Rep., 29, recently decided but not yet reported, and cases therein cited, among them, Miller v. State, 31 Texas Crim. Rep., 609; Martoni v. State, 74 Texas Crim. Rep., 90, 167 S. W. Rep., 349, and cases therein cited. The questions presented by these bills must have been regarded by appellant and her attorneys at the time as insignificant, for they did iiot in either instance regard tbe matter 'as of sufficient importance to request tbe judge in writing to charge the jury to disregard the matters. They certainly thought at the time that the action of the court and his instructing the jury where he did not to consider the matters was amply sufficient as showing no material error against appellant. So, that in any event, neither of said bills shows any reversible error.

The testimony of Mrs. Lucile Archer and that of her husband to the effect that they repeatedly heard Lillie Orner, the deceased, after the death of her father and before her death, say to appellant, in substance, “I know you killed papa, and you know that I know it," was clearly admissible. This unquestionably would show, or tend to show, the motive for appellant killing deceased and would form a very material link in the evidence against appellant. Appellant’s two bills on this subject show no error.

The only other question is presented by appellant’s three last bills. The first of these is to the testimony of Dr. Wright, which gives, in substance, the facts within his knowledge, showing that he was called by appellant to attend her husband, Mr. Orner, a few hours before Orner died. This testimony succinctly states the condition he found Orner in when he was called, what occurred between appellant, Oriier and himself about his illness at the time, and what occurred between them between that time and the death of Orner that night.». That the nest day, upon it being suspected that Orner had been killed by poison, he held a post-mortem examination, took out the organs of his body and placed them in a vessel for the later purpose of having them analyzed to determine whether he had been killed by poison or not. That, because the vessel wherein they were placed contained formalde-^ hyde, a poison itself, the organs and contents were not then chemically analyzed, and that, without such analysis arsenic poison could not be detected. That, upon reaching this conclusion, all the organs of the body, except the stomach, weie replaced in the.body and interred with.it. The effect of his post-mortem examination disclosed, and he testified, that nothing was shown to indicate the man died from any disease.

The next of these bills was to the testimony of Mr. Keastcr, the undertaker who buried the body of Orner. His testimony shows that he was present when Dr. Rogers and others disinterred Orner’s' body, took out the organs thereof, and that they were takerf away by Dr. Rogers for the purpose of making a chemical analysis thereof.^ He further briefly testified which organs were thus taken out, th^ir state of preservation, and the identity of the body of Orner thus disinterred.

The last of these bills was to the testimony of Dr. Rogers, y His testimony was to the effect that he had exhumed Orner’s body, or' what was shown to him to be Orner’s body, and that he opened the body where it had been opened previously in said post-mortem examination and took out several organs of the body for chemical examination, and that he .then did chemically examine these organs and found arsenic in the liver alone sufficient to unquestionably produce death from this arsenic poison.

These bills are lengthy, but we deem it wholly unnecessary to copy the testimony therein complained of in full. We have stated briefly the substance of it. Appellant made the same -objection to the testimony of each of these witnesses, Dr. Wright, Keaster and Dr. Bogers, which was, that it was immaterial and incompetent and calculated to-influence the jury to her prejudice. That it was incompetent in that it goes into the detail of the death of Orner and prejudiced the jury. That it was incompetent and an attempt to charge and prove she was guilty of causing the death of Orner on this trial, without showing any c-onnection between the death of Orner and the dec'&ased herein, and was an attempt to show the commission of a» independent crime, and at a time and place other than to which she was on trial, without same having any relation to or connection with this case. That there was. no legal proof of the death of Orner being unlawfully caused by appellant, and said evidence was immaterial and irrelevant to any issue in the case, and prejudicial to her rights before the jury. This is the-substance in full of her objections to the testimony of each of said witnesses. They are mere objections and are not statements of fact. We have carefully read the testimony of each of these witnesses objected to by appellant. It will be specially noted that in the objections to neither do&s she in anjr way point out or specify what of it, if any, went into the details unnecessarily or improperly of the death of Orner. It was important, quite so, for the State to prove a motive on appellant’s part for poisoning her own eleven-year-old daughter. The testimony was sufficient clearly to show that this daughter had repeatedly accused appellant of the murder of her father, and stating that appellant knew that she knew it. Theh it became proper for the State to-show that, as a matter of fact, the deceased’s accusations were true, and in order to prove .that they were true, it was proper and necessary for the Staté to show, in substance, as it did, by the testimony of these witnesses, that Orner did not die a natural death but was killed by arsenic poison. And the testimony of these witnesses was sufficient,, clearly so, to justify the jury to believe that appellant killed her husband by arsenic poison, that her daughter Lillie knew it, that she knew that Lillie knew it, and that, therefore, this showed the motive for the-killing of her own child. We have carefully, as stated, read this evidence and have failed to And any uiptecessary detail therein of the-death of Orner. Appellant, neither by her bill nor by her objections,, points out any such unnecessary detail. Dnder such circumstances it is well settled by the decisions of this State, as stated in the death penalty case of Ortiz v. State, 68 Texas Crim. Rep., 526, that, when a bill of exceptions includes a number of statements objected to, some of which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions thereof, such bill presents no error. Judge Davidson in that case cites Branch’s Crim. Law, sec. 47; Payton v. State, 35 Texas Crim. Rep., 508; Tubbs v. State, 55 Texas Crim. Rep., 606; Cabral v. State, 57 Texas Crim. Rep., 304. Many other cases could, also be cited. But we regard the question as so well settled, and established that it is unnecessary to collate any of the others. That some of the testimony, if not all of it, of each of these witnesses so generally objected to was admissible, there can be no doubt.

The evidence was conflicting. Some of the witnesses were impeached by showing contradictory statements by them, and in some instances of additional testimony which they did not give in previous trials. Mrs. Orner herself testified, denying that she killed by poison either her husband of her daughter, and in effect denied every other crimi-native'fact and circumstance against her. However, the testimony as a whole, and that of the State without doubt, was amply sufficient to, show that appellant was guilty of the crime for which she was convicted and that no other person than she lulled deceased.

The State did not try, nor pretend to try, appellant for the killing of her husband in this case. The testimony that was introduced to prove that she killed her husband was clearly admissible, as stated, and the court plainly told the jury in his charge that all the evidence introduced with reference to the death of Orner, if considered by them' at all, could be considered only for the purpose of showing motive, if any, for the billing of Lillie Orner, and could be considered by them for no other purpose whatever. In fact, the charge is a most admirable one. It presents every issue raised by the evidence, and in every way protects, so far as a judge should, the appellant and her rights in the consideration of the case by the jury. No complaint whatever is made of the charge of the court. No reversible error whatever is shown by this record. The penalty for murder by poisoning is fixed by the statute at either death or imprisonment for life. The jury assessed what is universally regarded as the lowest penalty they could in a case of this character, life imprisonment. The judgment is, therefore, affirmed.

Affirmed.

March 6, 1916.