Tooney v. State

5 Tex. Ct. App. 163

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

Opinion

White, J.

The indictment charges the appellant with the murder, by poison, of one William P. Barton, in the county of Tarrant, on October 14, 1877. Morphine and laudanum were the poisons alleged to have been used in the perpetration of the crime, and they were administered by being mixed and mingled in beer which was drunk by the deceased. The indictment was returned into court on March 23, 1878 ; a copy was served upon defendant on the same day, late in the evening, and defendant was put upon his trial April 3, 1878. Defendant’s conviction for murder in the first degree was the result of the trial, the punishment being death by hanging.

Three prominent questions present themselves in the bills of exception, and they relate, —

1. To the overruling of defendant’s application for a continuance.

2. To the charge of the court.

3. The overruling of defendant’s motion for a new trial.

With regard to the last, which we will first dispose of, in so far as it was based upon newly discovered evidence, the application was, in our opinion, insufficient. The main object for which the newly discovered testimony was sought was to impeach one of the State’s witnesses. The rule is, a new trial will not be "ranted because of evidence to imO peach a witness. Love v. The State, 3 Texas Ct. App. 501; Thompson v. The State, 2 Texas Ct. App. 289.

So far as most of the .witnesses named in the motion are concerned, the facts stated in the affidavit of accused, and the supporting affidavits of said witnesses, show that by the use of reasonable diligence the testimony might have been known to, and been had by, the defendant. Another rule is, that a new trial will not be granted on account of new evidence, when by reasonable diligence it could have been previously obtained. Linnard v. Crossland, 10 Texas, 465 ; Harmon v. The State, 3 Texas Ct. App. 51.

With regard to the witness Patton, whose testimony is also claimed as newly discovered, it is deposed by defendant that Patton will swear to the facts stated; but he does not state how he knows, or who informed him that he would do so. He should have stated the source of his information (Brown v. The State, 23 Texas, 195), and thereby have afforded the court an opportunity, if it desired to do so, to inquire into its reliability. For these reasons the court did not err in overruling the motion for a new trial on the ground of newly discovered evidence.

Defendant was put upon his trial on April 3, 1878, ten days after the return of the indictment. His application for a continuance states that on the 25th instant his subpoena for his witnesses, all of whom he swears reside in Tarrant County, was returned, “with the following indorsement thereon: ‘Executed on the 25th day of March, 1878, by reading in hearing of the within named witnesses — Mrs. Jones, J. W. Rahlkey, J. Brewer, Thomas Mahoney, Frank Kinch not found in county.’ ”

It is contended for the State that none of these witnesses named were served, or found in the county. If this position be correct, it follows that due diligence is wanting to support the application for a continuance, which is made for these witnesses ; because it would then appear that, after the return “ not found,” eight days at least had elapsed before trial, and no additional steps were taken by defendant to secure their attendance. If these identical witnesses were served, or any one of them, then due diligence had been exercised, and the application should have been granted, because it was the first, and came fully up to the requirements oí the statute. Pasc. Dig., art. 2987; Dinkins v. The State, 42 Texas, 250; Swofford v. The State, 3 Texas Ct. App. 76.

When a witness residing in the county has been served with a subpoena, no other process can issue for his attendance until he has failed to obey the subpoena; until this occurs an attachment cannot issue. Pasc. Dig., arts. 2907-2914. “ The amendment to article 435 of the Penal Code,

passed May 27, 1873 [Acts 1873, p. 103], does not affect the provisions of article 436 ; and the amendments to articles 379 and 380 of the Code of Criminal Procedure, contained in 2 Paschal’s Digest, articles 6601 and 6602, relate solely to enforcing the attendance of witnesses before the grand juries.” Austin v. The State, 42 Texas, 345.

There is nothing in the record save the return, as copied above, to guide us in solving this question. That does not inform us that there were other witnesses named in the subpoena than those named in the return ; nor does the punctuation of the language used in the return throw light upon the subject. If we presume that there were other witnesses named in the subpoena, and that they were the ones served, whilst none of those named in the return were, in fact, served, then we might indulge a conclusion contrary to the existence of the facts, and fatally injurious to the rights of a defendant on trial for his life. On the contrary, is the presumption not more reasonable and just, to say nothing of its humanity, that a party about to be placed upon trial for his life, finding that his material witnesses residing in the county had not been summoned, would have procured other process for them, which, to say the least of it, would have secured a continuance of his trial, if it should fail to procure their attendance? Pase. Dig., arts. 1435, 2987. An officer’s return on process placed in his hands for execution should not be indefinite. Such doubts could be easily obviated by showing in the return the names of the witnesses served, and also the names of the witnesses not served. The return is liable to another objection, viz.: it does not show that the subpoena was “ served by being read to the witness.” Pase. Dig., art. 1434.

Before proceeding to inquire into the correctness of the charge of the court, we propose to examine our statutes with reference to “ murder by poison,” since, so far as we remember, they have never heretofore been directly construed in regard to that offence. And, first, we will consider the crime as part of and in connection with our general statute defining murder. The language of this statute is : “ Every person, with sound memory and discretion, who shall unlawfully kill any reasonable creature in being within this State, with malice aforethought, either express or implied, shall be deemed guilty of murder. Murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offence to negligent homicide or manslaughter, or which will excuse or justify the homicide.” Pasc. Dig., art. 2266.

“ All murder committed by poison, starving, torture, or with express malice, or committed in the perpetration, or in the attempt at perpetration, of arson, rape, robbery, or burglary, is murder in the first degree ; and all murder not of the first degree is murder of the second degree.” Pasc. Dig., art. 2267.

Here we see that the language used is “ all murder committed by poison,” “is murder in the first degree.” Not all homicide or killing, because all killing is not murder, nor is all unlawful killing murder; but the offence committed must be murder, — murder in its legal, technical sense,—which is made distinguishable from every other species of homicide by being an unlawful killing, actuated by “malice aforethought, either express or implied.” This essential ingredient,- — “malice aforethought,”—is as necessary to constitute the crime of murder by poison as it is to constitute murder committed by any other means. Our Penal Code does not define the meaning of the expression, “ malice aforethought.” It has, however, been fully defined in the light of common-law authority by our former chief justice, in tche celebrated case of McCoy v. The State, and which definition is now accepted throughout this State as eminently correct.

He says : “In every indictment for murder, the prisoner is charged with having, with malice aforethought, killed the deceased. The proof to sustain this charge under the law may or may not exhibit deliberate malevolence in the mind of the prisoner towards the person killed, though that may be the literal import of the charge, in the ordinary acceptation of the terms used. Hence malice aforethought, when attempted to be defined, has been necessarily given a more comprehensive meaning than enmity, or ill-will, or revenge ; and has been extended so as to include all those states of the mind under which the killing of a person takes place without any cause which will, in law, justify, excuse, or extenuate the homicide.” 25 Texas, 33, citing Rex v. Harvey, 2 Barn. & Cress. 268 ; 1 Hawk. P. C. 95 ; 1 Russ, on Cr. 482 ; Penal Code, art. 607 (Pasc. Dig., art. 2266).

Again, he says: “ Express malice is when one, with a sedate, deliberate mind, and formed design, doth kill another. * * * The design formed must be to kill the deceased, or inflict some serious bodily harm upon him. This would indicate that the malevolence must be directed towards the deceased as its object. * * * This design is not confined to an intention to take away the life of the deceased, but includes the intent to do any unlawful act which may probably end in depriving the party of life. Roscoe’s Cr. Ev. 707; Stark, on Cr. Pl. 711. This specific malevolence towards the person killed may be embraced in such utter and reckless disregard of life as shows a man to be an enemy to all mankind, — as, when a man resolves to kill the next man he meets, and does kill him; or shoots into a crowd wantonly, not knowing whom he may kill. 4 Bla. Com. 200.” McCoy v. The State, 25 Texas, 33.

Malice express consists in the actual and deliberate intention unlawfully to take away the life of another, or do him great bodily harm. Implied or constructive malice is not a fact, but is an inference or conclusion founded upon the particular facts and circumstances of the case as they are ascertained to exist. McCoy v. The State, 25 Texas, 33; 2 Stark, on Cr. PI. 711.

Murder in the first degree, then, is constituted when the specific intention is to take the life of the deceased, or to do him some serious bodily harm, the doing of which subsequently results in his death. Without such intention ‘‘malice aforethought” is wanting, and if death ensues, whether by poison or other means, it is not murder in the first degree. But if malice aforethought is shown to exist, and the means used be poison, then the killing becomes, under our law, ipso facto murder in the first degree. In other words, when murder is committed by poison, the atroclous enormity and heinousness of the crime is such that our law-givers have wisely provided it shall consist of no degrees, and shall merit the highest punishment known to the law. We are aware that the doctrine thus declared is not the uniform rule as it obtains in, perhaps, the majority of the American States. This contrariety of decision, however, arises from the difference in the terms of their statutes from those used in ours.

Turning, now, from the general statute of murder, we find that we have a further and additional statute declaring other crimes growing out of the administration of poisonous and injurious potions, and which may in certain contingencies become murder. These statutes read 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.

• “Art. 2199. 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.

“Art. 2200. 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.”

Evidently, the object of this statute was to reach a class of cases about which doubts might arise when the general statute of murder was sought to be applied to them. Such doubts were more imaginary than real, in our construction of both statutes. It is to be noted that under these latter statutes “ the intent to kill,” or “ the intent to injure,” are made to stand in lieu of and must be proven just as “ malice aforethought” under the general law, which, as we have seen, when explained, means nothing more nor less than the taking of life with intention to do so, or when death results from an intention to do serious bodily harm. In either case, and under this latter, as under the former statute, the malicious intent and its proof are not only the same, but are also the very gist of the offence. So utterly revolting to every sense of humanity is the use of poisons as means of injury to and for the destruction of human life, because of the cool, calculating fiendishness, the deliberate craftiness with which they are administered, and the unsuspecting confidence with which they are necessarily taken by the innocent victim, that the law, in its efforts to suppress it entirely as one of the foulest of all crimes, denounces no half-way penalties against it after it has accomplished the destruction of a reasonable creature in being. Under these last statutes, if death ensues within one year it is murder ; and it is murder in the first degree under the express terms of our statutes (art. 2267), because committed by poison.

In the case at bar the indictment was evidently so framed, and properly, we think, in view of the facts, to fit the provisions of article 2200, above quoted. It is good under either or both statutes.

The view of the case taken by the learned judge, as developed in his charge to the jury, was that the case made by the pleadings and evidence was one coming solely under our general statute of murder, supra. Under either statute this charge is insufficient. Under the first (arts. 2266, 2267), because it did not explain “ malice aforethought,” which is the essential ingredient of murder by poison, as of all other murder; the only difference being that in murder by poison the crime is incapable of degrees, and, consequently, is not subjected to the test or distinction between “express” or “implied malice,” ordinarily used to characterize the degree of murder, but would be murder of the first degree in any event, no matter what kind of malice might be shown. Under the other statute (art. 2200) the charge would also be insufficient, in not submitting to the jury, as the essential facts to be ascertained and determined, whether or not the poison was administered “ with intent to take life,” or “ to injure the health or functions of the body” of the person killed.

Again, the charge was error in that it submitted to the jury an issue not made by the indictment. We find this language used in paragraph 2: “ All murder committed by poison, and all murder committed in the perpetration, or attempted perpetration of robbery, is murder in the first degree.” And also, in paragraph 4, the further instruction: “If you find'from the testimony that the said poison was so given to the said Barton by the said defendant, either alone or acting with other persons, with the intent on the part of defendant to kill or rob the said Barton, then you will find the defendant guilty of murder in the first degree.”

In the indictment it is nowhere alleged that the murder was committed in the perpetration of, or attempt to perpetrate, robbery. A charge, to be legal, — that is, to “present the law applicable tó the case,”—must meet and be limited by the case as set forth and pleaded in the indictment. The charge must conform to and correspond with the allegations. To go outside of and beyond them, in submitting other issues, is not only calculated to mislead the jury, but also calculated to injure the rights of the defendant, by making them depend upon matters he could not be prepared to meet, because he was not notified that they would be urged against him. Coney v. The State, 43 Texas, 414; Kouns v. The State, 3 Texas Ct. App. 13; Ferguson v. The State, 4 Texas Ct. App. 156.

The seventh and eighth paragraphs of the charge presented the law with regard to accomplices correctly, as the same is provided in article 3118, Paschal’s Digest, with the exception that, in paragraph 8, the expression, “ connect the defendant with the offence charged,” instead of “ with the offence committed,” is twice used. The statute reads: “ A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offence committed ; and the corroboration is not sufficient if it merely shows the commission of the offence.” Art. 3118. See the following cases, in which this article has been discussed and construed: Dill v. The State, 1 Texas Ct. App. 278; Irvin v. The State, 1 Texas Ct. App. 301 ; Kelly v. The State, 1 Texas Ct. App. 628; Nourse v. The State, 2 Texas Ct. App. 304; Davis v.The State, 2 Texas Ct. App. 588 ; Gillian v. The State, 3 Texas Ct. App. 132; Welsh v. The State, 3 Texas Ct. App. 413; Jones v. The State, 3 Texas Ct. App. 575 ; Barrara v. The State, 43 Texas, 260 ; Roach v. The State, 4 Texas Ct. App. 46 ; Jackson v. The State, 4 Texas Ct. App. 292, 293 ; and other cases decided at the present term by this court.

It is unnecessary that we should discuss any of the other errors complained of, as none are considered of vital moment. Nor will we discuss the facts proven, or character of the evidence as adduced on the trial and set out in the statement in the record.

For the reasons we have shown, it appearing that the charge of the court did not present the law applicable to the case, the judgment rendered below is reversed and the cause remanded.'

Reversed and remanded.